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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 10 of 2017

James Lokoyen Etibor & 2 others v Republic [2018] KECA 146 (KLR)

Court of Appeal of Kenya
8 November 2018
1,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal voided a High Court criminal appeal judgment because one judge lacked jurisdiction, but ordered a fresh appeal hearing instead of releasing the convicts.

What this practically means

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Executive summary

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The three appellants were convicted by the Principal Magistrate's Court at Kitale of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, the convictions resting mainly on fingerprint evidence and circumstantial evidence, including the use of the deceased's missing mobile phone and the first appellant's disappearance. Their first appeals to the High Court at Kitale, heard by J. R. Karanja and E. Obaga, JJ, were dismissed on 19th November 2013. On second appeal, the appellants' principal ground was that Obaga, J, being a judge of the Environment and Land Court, lacked jurisdiction to hear a criminal appeal, relying on this Court's decision in Karisa Chengo & 2 others v. Republic as affirmed by the Supreme Court in Republic v. Karisa Chengo & 2 others, Petition No. 5 of 2015. The respondent conceded the jurisdictional defect but sought remittal. The Court of Appeal (Githinji, Okwengu and Mohammed, JJ.A) held that, given the identical bench composition to Karisa Chengo, the High Court judgment was a nullity ab initio. Allowing the appeal, it set aside the High Court judgment and remitted the case to the High Court for rehearing of the appeal by a competent bench, holding that neither the prosecution nor the appellants bore blame for the defective bench and that the interests of justice were best served by rehearing rather than acquittal. The judgment binds subordinate courts and High Court benches on the nullity principle.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judgment of the High Court was a nullity because the bench comprised a judge of the Environment and Land Court without jurisdiction to hear criminal appeals
  2. 2.Whether, if the proceedings were a nullity, the appropriate remedy is a re-trial or remittal to the High Court for rehearing of the appeal

Key legal issues

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01

Whether the High Court judgment was a nullity for want of jurisdiction

Holding

Yes. The bench comprising a judge of the High Court and a judge of the Environment and Land Court had no jurisdiction to hear and determine the criminal appeal, as decided in Karisa Chengo and affirmed by the Supreme Court.

Reasoning

The composition of the Kitale High Court bench was identical to that in Karisa Chengo. The Court of Appeal decision that such a bench lacked jurisdiction over criminal appeals was affirmed by the Supreme Court in Petition No. 5 of 2015. The consequence of that holding is that the impugned judgment is a nullity from inception, and neither the prosecution nor the appellants were to blame for the defective constitution of the bench.

p. 2
02

The appropriate remedy following the nullity

Holding

The appeal was allowed and the judgment of the High Court set aside, but rather than quashing the convictions and releasing the appellants, the case was remitted to the High Court for rehearing of the appeal by a competent bench.

Reasoning

This was an aggravated robbery in which the victim was killed, so the charge was serious. Neither party was to blame for the jurisdictional defect. Weighing the nullity against the interest of justice and the weight of the evidence, the Court held that the interests of justice were best served by a rehearing of the first appeal before a properly constituted bench rather than an acquittal or a re-trial.

p. 2

Legal principles established

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  • A criminal appeal heard and determined by a High Court bench that includes a judge of the Environment and Land Court is a nullity ab initio, as the Supreme Court affirmed in Republic v Karisa Chengo & 2 others.
  • Where appellate proceedings are vitiated for want of jurisdiction but neither side is to blame, the interest of justice is served by remitting the matter for rehearing by a competent bench rather than an outright acquittal.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the High Court is set aside
  3. 3.The case is remitted to the High Court for rehearing of the appeal by a competent bench

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kitale
HCCRA. Nos. 88, 89, 90 of 2010
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal under the Constitution over appeals from the High Court in criminal matters (Court of Appeal Rules, Rule 59(1))
Consolidated with
Notices of appeal of the three appellants registered as one consolidated Criminal Appeal No. 10 of 2017; High Court consolidated appeals HCCRA. Nos. 88, 89, 90 of 2010

Relief refused

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Quashing of conviction and setting the appellants at liberty

The Court instead remitted the appeal to the High Court for rehearing by a competent bench, finding the interests of justice served by that course

p. 2

Costs

No order as to costs is recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing reasons, the appeal is allowed. The judgment of the High Court is set aside. The case is remitted to the High Court for rehearing of the appeal by a competent bench.
p. 2Final orders and disposition
Pursuant to the decision of the Supreme Court, aforesaid the judgment of the High Court subject of the appeal before us is a nullity ab initio and we so find.
p. 2Nullity of judgment for want of jurisdiction
Neither the prosecution nor the appellants were to blame for the mistake in constituting the bench.
p. 2No fault attributable to either party for jurisdictional defect
In the circumstances of this case, the interest of justice will be manifestly served by remitting the case to the High Court for the rehearing of the appeal by a competent bench.
p. 2Remedy: remittal for rehearing

Issues in the judgment

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minor

The respondent is misspelled as 'RESPODDENT' in the cause heading.

minor

The judgment's internal cross-reference to the prosecution evidence is internally inconsistent, citing 'paragraph 4[1] - 4'.

minor

The Karisa Chengo Court of Appeal authority is spelled inconsistently within the judgment ('Karisa Chengo' and 'Karisa Chego').

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, "James Lokoyen Etibor & 2 others v Republic [2018] KECA 146 (KLR)", Case Analysis (2018). Criminal Appeal No. 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/146/eng@2018-11-08

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