Chengo & 2 others v Republic (Criminal Appeal 44, 45 & 76 of 2014 (Consolidated)) [2015] KECA 756 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges of specialised courts cannot hear criminal appeals, quashing convictions decided by an improperly constituted High Court bench.
What this practically means
#Executive summary
#Key legal issues
#Whether an ELC judge can sit as a High Court judge to hear criminal appeals
No. The court a judge is appointed to determines the jurisdiction that judge is seized of; Angote, J., being appointed to the ELC, had no jurisdiction to hear criminal appeals reserved for the High Court, and his participation rendered the proceedings a nullity to that extent.
Article 162(2) courts have the status of, but are not, the High Court. Parliament prescribed distinct professional experience for ELRC and ELC judges under sections 6 and 7 of their establishing Acts. The Judicature Act's definition of 'judge' does not cover specialised court judges. A judge cannot be 'a judge at large' or appointed 'without portfolio'; the Gazette Notice of appointment and oath of office confine the judge to the specific court. Administrative deployment powers of the Chief Justice cannot confer jurisdiction.
Whether denial of State-funded counsel under Article 50(2)(h) entitled the appellants to an acquittal
No. Although the right to legal representation at State expense applies where substantial injustice would otherwise result, and capital offenders unable to afford counsel fall within it, acquittal is not the remedy; the appellants showed no substantial injustice.
Following David Njoroge Macharia v Republic, state-funded representation is a right in certain instances, including capital offences where the accused cannot afford counsel. Substantial injustice arises where the accused is charged with a capital offence, cannot afford representation, and the trial is compromised. Here the records showed the appellants actively participated in their trials and cross-examined witnesses, so no substantial injustice was occasioned. An acquittal is not an appropriate remedy for a proved rights violation (Julius Kamau Mbugua v Republic).
Interpretive approach to Articles 162 and 165 of the Constitution
The Constitution is to be interpreted purposively, as a living instrument read as an integral whole; on that basis the High Court's jurisdiction is limited by the jurisdiction of the Article 162(2) courts and vice versa.
Relying on Ndyanabo, Kigula, Tinyefuza and the Supreme Court in Re the Interim Independent Electoral Commission, the court adopted purposive interpretation, reading the Constitution as a whole and comparing South African jurisprudence on courts of equal status (Gcaba). The High Court under Article 165(5) cannot hear matters within the exclusive jurisdiction of the ELRC and ELC, and those courts cannot hear matters reserved for the High Court.
Legal principles established
#- A judge appointed to a specialised court of equal status (ELRC or ELC) cannot lawfully be deployed to sit in any other superior court, and proceedings presided over in breach of that rule are a nullity
- The Chief Justice cannot confer jurisdiction on a judge or judicial officer by administrative fiat; jurisdiction flows only from the Constitution or statute
- The High Court, the ELRC and the ELC are courts of equal status, autonomous of one another, each exercising its own peculiar jurisdiction; status is not the same thing as jurisdiction
- Anything done without jurisdiction is a nullity
Court orders
#- 1.The appeals allowed only to the extent that the proceedings in the High Court are quashed for being a nullity
- 2.The appeals be heard afresh, expeditiously, by the High Court manned by judges of competent jurisdiction
- On appeal from
- High Court of Kenya at Malindi
- H.C.Cr.A. No. 49 of 2012
- Jurisdiction invoked
- First appellate/second appellate criminal jurisdiction under section 359 of the Criminal Procedure Code and Article 164 of the Constitution (appeals from the High Court in capital offences)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aberdare Maize Milling Company Limited v National Bank of Kenya & 2 others (Environment and Land Case E018 of 2025) [2026] KEELC 2770 (KLR)[2026] KEELC 2770 (KLR)29 Apr 2026
- Chelogoi v Office of the Director of Public Prosecutions & another; Shah & another (Interested Parties) (Environment and Land Miscellaneous Application E060 of 2025) [2026] KEELC 1291 (KLR)[2026] KEELC 1291 (KLR)5 Mar 2026
- Maina v Gachagua & 66 others (Civil Application E534 of 2025) [2025] KECA 1946 (KLR)[2025] KECA 1946 (KLR)21 Nov 2025
- Mbuki v Waweru & 3 others (Environment & Land Case E030 of 2025) [2025] KEELC 2932 (KLR)[2025] KEELC 2932 (KLR)25 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Chengo & 2 others v Republic (Criminal Appeal 44, 45 & 76 of 2014 (Consolidated)) [2015] KECA 756 (KLR)", Case Analysis (2015). Criminal Appeal Nos. 44, 45 and 76 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/756/eng@2015-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.