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Court of AppealPartially AllowedCriminal Appeal No. 17 of 2017· [2018] KECA 711 (KLR)

Benjamin Kemboi Kipkore v Republic [2018] KECA 711 (KLR)

Court of Appeal
14 February 2018
617 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant was convicted by the Principal Magistrate's Court at Kapenguria on two counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death on the first count, the sentence on the second being held in abeyance. His first appeal to the High Court at Kitale was dismissed on 19th November 2013 by a bench comprising Karanja, J. and Obaga, J., giving rise to this second appeal. Before the Court of Appeal at Eldoret, counsel for the appellant raised a single ground: that the High Court proceedings were a nullity because Obaga, J. had been appointed a judge of the Environment and Land Court, not of the High Court, and because section 359 of the Criminal Procedure Code requires appeals from subordinate courts to be heard by two judges of the High Court. Reliance was placed on the Supreme Court's decision in Republic v Karisa Chengo & 2 Others, which limited the jurisdiction of ELC judges to matters under the Environment and Land Court Act and declared unlawful the Gazette Notice empanelling ELC and ELRC judges to hear criminal appeals. The Senior Prosecuting Counsel conceded the point and asked for remittal. Applying Karisa Chengo, the Court of Appeal held the High Court proceedings and judgment to be a nullity. Balancing the jurisdictional defect against the gravity of the offence - robbery involving a large sum of money and AK 47 rifles - it allowed the appeal, set aside the High Court judgment, and remitted the appeal for re-hearing before judges of the High Court only.

Key legal issues

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01

Whether criminal appellate proceedings before a High Court bench including an Environment and Land Court judge are a nullity

Holding

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.

Reasoning

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.

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02

The appropriate remedy where a first appeal judgment is a nullity for want of jurisdiction

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The appeal is allowed
  2. 2.The judgment of the High Court dated 19th November, 2013 is set aside
  3. 3.The appeal is remitted to the High Court for re-hearing by a court constituted only of the Judges of the High Court

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 359
  • Environment and Land Court Act

Cases cited (1)

  • Republic vs Karisa Chengo & 2 Others
    [2017] eKLR
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

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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, "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.