T W W v Republic [2018] KECA 236 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a criminal appeal ruling because the judge who decided it had no jurisdiction, restarting the appeal process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mutungi, J., a judge of the Environment and Land Court, had jurisdiction to hear and determine the appellant's first appeal in the High Court
- 2.Whether the appellant's contention that the High Court erred in dismissing his appeal and refusing a retrial merited intervention
- 3.Whether the mandatory sentence of life imprisonment under the Sexual Offences Act should be set aside in light of Francis Karioko Muruatetu & another v Republic (raised by the respondent)
Key legal issues
#Jurisdiction of an Environment and Land Court judge to sit in and determine a High Court criminal appeal
The Environment and Land Court is a specialised court; its judge has no jurisdiction over criminal appeals, and the impugned High Court judgment is a nullity ab initio.
Following the Supreme Court's decision in Republic v Karisa Chengo & 2 others – Petition No. 5 of 2015, which held that the Environment and Land Court and Employment and Labour Relations Court are specialised courts with limited jurisdiction, the Court of Appeal held that Mutungi, J., being an ELC judge, lacked jurisdiction to hear the criminal appeal. A judgment rendered without jurisdiction is a nullity and must be set aside, with the matter remitted to a properly constituted High Court.
Legal principles established
#- A judge of the Environment and Land Court lacks jurisdiction to hear and determine a criminal appeal in the High Court; a judgment delivered by such a judge is a nullity ab initio.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the High Court is set aside as a nullity ab initio
- 3.The appeal is remitted to the High Court at Bungoma for re-hearing by a judge with jurisdiction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- H.C.CR.A. NO. 88 OF 2013
- Jurisdiction invoked
- First appellate criminal jurisdiction under the Constitution and the Court of Appeal's supervisory jurisdiction over the High Court; jurisdictional defect identified per Republic v Karisa Chengo & 2 others – Petition No. 5 of 2015
Relief refused
#Determination of the merits of the appellant's grounds on conviction and sentence, and the respondent's Muruatetu-based sentence submission
The Court found the High Court judgment was a nullity for want of jurisdiction, so it did not consider the merits or the sentencing submission; the appeal was remitted for re-hearing.
Costs
No costs order appears in the judgment; the judgment closes with 'We so order' and makes no award of costs.
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.
Pursuant to the decision of the Supreme Court in Republic v. Karisa Chengo & 2 others – Petition No. 5 of 2015, we find that the learned judge had no jurisdiction to determine the appeal and the impugned judgment is therefore a nullity ab initio.
For that reason, the appeal is allowed, the judgment of the High Court is set aside. In the interest of justice, the appeal is remitted to the High Court at Bungoma for re-hearing by a judge with jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "T W W v Republic [2018] KECA 236 (KLR)", Case Analysis (2018). Criminal Appeal No. 133 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/236/eng@2018-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.