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Court of AppealPartially AllowedCriminal Appeal No. 494 of 2010· [2016] KECA 627 (KLR)

Silas Kariuki Ngare & 1 other v Republic

Court of Appeal of Kenya
22 April 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
1,357 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a criminal judgment not signed by every judge who heard it is a nullity, ordering a fresh High Court appeal hearing.

What this practically means

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Executive summary

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The two appellants were jointly charged before the Chief Magistrate's Court at Mombasa with robbery with violence contrary to section 296(2) of the Penal Code, with an alternative count of handling stolen property, following the armed robbery of a compressor machine and other property from the complainant on 14th June 2005. Four days later they were arrested while offering the compressor for sale at a garage. On 11th October 2006 the trial magistrate convicted them of robbery with violence and sentenced them to death, while acquitting a co-accused. Their first appeal was dismissed by the High Court at Mombasa (Azangalala and Odero, JJ.) on 22nd September 2010, prompting this second appeal. During the hearing the Court of Appeal noticed that although both High Court judges heard the appeal, only Azangalala, J. signed the judgment; it confirmed this from the original handwritten record. Relying on its consistent line of authority, including Lokwacharia v Republic, the Court held that a judgment not signed by the presiding judge or judges as required by section 169(1) of the Criminal Procedure Code is a nullity on which no appeal can be based, since the signature authenticates the judgment and the requirement is mandatory. Both counsel agreed the proper course was a re-hearing. Allowing the appeal, the Court directed under section 361(2) of the Criminal Procedure Code that the High Court appeal be re-heard by a different bench of two judges, ordered the appellants to remain in custody pending presentation before the High Court within fourteen days, directed that the re-hearing be expedited given the 2006 convictions, and instructed the deputy registrar to alert the resident judges at Malindi and Mombasa to ensure all judgments are signed and dated as required by law.

Key legal issues

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01

Validity of an unsigned High Court judgment

Holding

A judgment signed by only one of the two judges who heard the appeal is a nullity; it cannot form the basis of a competent appeal before the Court of Appeal.

Reasoning

Section 169(1) of the Criminal Procedure Code requires judgment to be signed by the presiding judge or judges. The Court called for the original handwritten record and confirmed only Azangalala, J. signed. The requirement has been consistently interpreted as mandatory; the signature authenticates the judgment, and its absence renders the judgment a nullity, precluding consideration of its merits.

p. 2
02

Remedy where the first appellate judgment is a nullity

Holding

The appropriate remedy is to allow the appeal and direct a re-hearing of the High Court appeal by a different bench of two judges, applying the same principles as for a retrial.

Reasoning

Both counsel agreed an unsigned judgment is a nullity and that a re-hearing is the best course. Following Lokwacharia and Musee, the Court applied the retrial principles: the error was entirely of the court's own making and cannot be blamed on the prosecution or the appellants, so the ends of justice demand a re-hearing rather than an acquittal.

p. 3

Legal principles established

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  • A judgment of the High Court not signed by all the judges who heard the appeal is a nullity and no competent appeal can be based on it; the signature requirement in section 169(1) of the Criminal Procedure Code is mandatory.
  • Signing a judgment is not a mere formality; the signature authenticates the judgment.

Court orders

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  1. 1.The appeal to the Court of Appeal is allowed
  2. 2.Pursuant to section 361(2) of the Criminal Procedure Code, the appeal be re-heard in the High Court by a different bench of two judges
  3. 3.The appellants shall remain in prison custody until presented before the High Court within fourteen (14) days for setting of a date for re-hearing
  4. 4.The re-hearing of the appeal must be expedited and prioritized
  5. 5.The deputy registrar shall bring the judgment to the attention of the resident judges of the High Court in Malindi and Mombasa to ensure all judgments are signed and dated as required by law
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 278 of 2006
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Silas Kariuki Ngare & 1 other v Republic", Case Analysis (2016). Criminal Appeal No. 494 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/627/eng@2016-04-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.