Benjamin Kemboi Kipkore v Republic [2018] KECA 711 (KLR)
The bottom line
#Kenya's Court of Appeal voided a criminal appeal judgment because it was partly heard by a judge without authority, ordering a fresh hearing instead of freeing the accused.
What this practically means
#Executive summary
#Key legal issues
#Whether criminal appellate proceedings before a High Court bench including an Environment and Land Court judge are a nullity
Yes. Following the Supreme Court's decision in Karisa Chengo, a judge of the ELC has no jurisdiction to determine criminal appeals, so the High Court judgment was a nullity.
The Supreme Court in Karisa Chengo held that the jurisdiction of judges appointed to the Environment and Land Court is limited to matters under the Environment and Land Court Act and that the Gazette Notice empanelling ELC and ELRC judges to hear criminal appeals was unlawful and unconstitutional. The court below, which included E. Obaga, J., was therefore not competently constituted, rendering its proceedings and judgment a nullity.
The appropriate remedy where a first appeal judgment is a nullity for want of jurisdiction
Remittal of the appeal to the High Court for re-hearing by judges of the High Court, rather than an outright quashing of the conviction and release.
Although the appellant asked for the conviction to be quashed and to be set free, and the prosecution itself sought remittal, the court balanced the jurisdictional defect against the gravity of the offence - robbery involving a large sum of money and AK 47 rifles - and concluded that justice required a fresh hearing before a properly constituted High Court bench.
Legal principles established
#- Where a criminal appeal from a subordinate court was heard by a judge of the Environment and Land Court improperly empanelled to sit as a High Court judge, the proceedings and judgment are a nullity.
- Criminal appeals from subordinate courts in the High Court must be heard by judges of the High Court; where the judgment is a nullity, the appropriate remedy is remittal for re-hearing by a properly constituted court rather than an acquittal.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the High Court dated 19th November, 2013 is set aside
- 3.The appeal is remitted to the High Court for re-hearing by a court constituted only of the Judges of the High Court
- On appeal from
- High Court of Kenya at Kitale
- HCCRA No. 97 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Criminal Procedure Code following conviction and sentence under section 296(2) of the Penal Code; jurisdictional challenge grounded on section 359 of the Criminal Procedure Code and the Supreme Court decision in Republic v Karisa Chengo & 2 Others
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kemboi Kipkore v Republic [2018] KECA 711 (KLR)", Case Analysis (2018). Criminal Appeal No. 17 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/711/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.