David Juma Atelu v Republic [2018] KECA 175 (KLR)
The bottom line
#Kenya's Court of Appeal voided a criminal appeal heard by an Environment and Land Court judge, ruling that such judges cannot hear criminal appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the first appeal in the High Court was validly heard and determined by a bench that included a judge of the Environment and Land Court
- 2.What orders should follow if the first appellate proceedings were a nullity
Key legal issues
#Jurisdiction of an Environment and Land Court judge to sit on a criminal appeal in the High Court
The first appellate proceedings were a nullity because one of the two judges who heard the criminal appeal was a judge of the Environment and Land Court, following the Supreme Court's decision in Republic v Karisa Chengo.
The Director of Public Prosecutions conceded that the first appeal was heard by two judges, one of whom (Kibunja, J.) had been appointed to the Environment and Land Court by Gazette Notice No. 14346 of 5th October 2012. Relying on the Supreme Court's decision in Republic v Karisa Chengo and 2 Others, Petition No. 5 of 2015, the court held that such a judge has no jurisdiction over a criminal appeal. The proceedings were therefore a nullity, leaving no proper judgment on which the present appeal could be anchored, and the matter was remitted for a fresh first appeal before a properly constituted bench.
Legal principles established
#- A judge of the Environment and Land Court has no jurisdiction to hear and determine a criminal appeal in the High Court; proceedings before such a bench are a nullity.
Court orders
#- 1.The proceedings before the first appellate court were declared a nullity
- 2.The matter was remitted to the High Court for re-hearing of the first appeal before a bench of judges with competent jurisdiction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Busia
- HCCR No. 60 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court in a criminal matter (Criminal Appeal No. 32 of 2014); the judgment does not cite the specific constitutional provision.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it is now settled that a judge of the Environment and Land Court has no jurisdiction to hear and determine a criminal appeal in the High Court
In the circumstances, we remit this matter back to the High Court for re-hearing of the first appeal before a Bench of the High Court made up of judges with competent jurisdiction.
Issues in the judgment
#The coram lists three judges of appeal but the judgment states it is signed by only two under Rule 32(2), and J. Mohammed does not appear among the signatories; the third judge's participation in the decision is not evidenced on the face of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Juma Atelu v Republic [2018] KECA 175 (KLR)", Case Analysis (2018). Criminal Appeal No. 32 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/175/eng@2018-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.