Republic v Pepela & 24 others (Criminal Application 3 of 2016) [2018] KECA 247 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the State can appeal a High Court decision that overturned military court convictions, because no law explicitly blocks such 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 applicant has an automatic right of appeal to the Court of Appeal against the High Court's judgment of 21st August 2015 setting aside the respondents' court martial convictions and sentences
- 2.If there is no automatic right of appeal, whether leave to appeal ought to be granted
- 3.Whether the applicant's right of appeal was restricted by Section 186 of the KDF Act prior to its 2016 amendment
Key legal issues
#Whether Article 164(3) of the Constitution confers a general, automatic right of appeal from the High Court
No. Article 164(3) is the foundation of the Court's jurisdiction but does not confer a right of appeal on all and sundry; the right of appeal may be conferred or restricted by statute so long as the restriction is consistent with the Constitution.
The Court reviewed the divergent lines of authority, including the Judicial Service Commission v Kalpana Rawal and Ramadhan Mohamed Ali decisions. It aligned itself with Ouko, J.A's view in the Judicial Service Commission case that the right of appeal is not carte blanche. The applicant did not in any event rely on Article 164(3) itself. Jurisdiction and right of appeal are distinct; a party must have a right of appeal before invoking the Court's jurisdiction.
Whether Section 186 of the KDF Act, prior to its 2016 amendment, restricted the State's right of appeal to the Court of Appeal
No. Unlike the repealed Armed Forces Act, which expressly made the High Court's decision final, the KDF Act contained no express bar on a State appeal. The right of appeal was therefore not outlawed by statute.
The Court applied contextual interpretation (citing the Canadian Supreme Court in Dunsmuir): the KDF Act dropped the Armed Forces Act's finality clause without expressly denying the D.P.P a right of appeal, and was enacted after the 2010 Constitution, whose Article 27 forbids discrimination. Adopting the Ugandan Supreme Court's dictum in Baku Raphael Obudra, the Court held that a restriction of a constitutionally grounded right must be express, not inferred by judicial reasoning.
Whether the 2016 amendment to Section 186 of the KDF Act (Section 26A of the KDF (Amendment) Act, 2016) supplies the applicant's right of appeal
No. The Court agreed that the 2016 amendment cannot operate retrospectively; the right of appeal rests on the Constitution instead.
The respondents argued, and the Court accepted, that the amendment post-dated the High Court's judgment and could not apply retroactively (relying on Mary Wafula v British Airways). Nevertheless, because the unamended Act contained no express denial of the right, the Constitution's guarantee of equality and non-discrimination endowed the applicant with the right of appeal independently of the amendment.
Legal principles established
#- Article 164(3) of the Constitution confers jurisdiction on the Court of Appeal but does not confer an automatic right of appeal on every aggrieved party; the right of appeal may be conferred or restricted by statute.
- Where no statute expressly denies a right of appeal to the Court of Appeal, the right is endowed by the Constitution's anti-discrimination guarantee, and the applicant has a right of appeal notwithstanding the absence of an express statutory conferment.
- Equality of arms is a cardinal tenet of a fair trial; parties before a court, including the D.P.P., must benefit from the same rights as other parties.
Court orders
#- 1.The application is allowed with no order as to costs
- 2.The applicant is directed to file the intended appeal within 14 days from the date of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- 25 separate appeals (serial numbers not stated in the judgment)
- Jurisdiction invoked
- Article 164(3) of the Constitution of Kenya, 2010, as read with the right of appeal framework discussed in the KDF Act and Criminal Procedure Code
Relief refused
#Determination of whether the impugned judgment was a nullity and whether Sections 348A and 361 of the Criminal Procedure Code apply to court martial decisions
These questions are for the bench sitting on the appeal, and the Criminal Procedure Code question is rendered moot by the Court's finding that the applicant has a right of appeal under the Constitution
Costs
Allowed with no order as to 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.
it is not a carte blanche for all decisions of the High Court to be appealable to this Court as of right. This right of appeal may be restricted by statute.
With the repeal of the Armed Forces Act, there is no statute that expressly denies the applicant the right of appeal to this Court on second appeal in matters arising from court martials.
Parity or equality of arms is a cardinal tenet in any fair trial. When the D.P.P appears in court as a party, he has the same rights as the other parties and must benefit from the same rights accorded to the other parties.
Where, as is alleged in this case, Parliament intends to abolish or restrict a citizen’s right which is apparently granted or implied by the provisions of the Constitution which is a superior law, Parliament must do so expressly and its will must be clearly manifested in the words used in the Act.
We allow it with no order as to costs and direct that the applicant files the intended appeal within 14 days from the date of this ruling.
Issues in the judgment
#The judgment text contains recurring typographical corruption of the letter 'f' in words such as 'difierent', 'ofience', 'efiect', 'afidavits' and 'efiense', suggesting an imperfect copy of the official record.
The judgment refers throughout to 'the learned Judge' also when describing the applicant's counsel's submissions, conflating counsel and judge in places; e.g. in the applicant's grounds, it states 'The learned Judge is also faulted for inter alia misinterpreting what constitutes an ofience of desertion', which is attributed to the applicant's complaint rather than a finding.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Pepela & 24 others (Criminal Application 3 of 2016) [2018] KECA 247 (KLR)", Case Analysis (2018). Not stated in the judgment (application for leave to appeal; the 25 underlying High Court appeals were assigned serial numbers of the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/247/eng@2018-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.