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Court of AppealPartially AllowedCriminal Appeal No. 102 of 2015· [2018] KECA 819 (KLR)

Peter Eregai v Republic [2018] KECA 819 (KLR)

Court of Appeal of Kenya
14 February 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
591 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a judge appointed to the Environment and Land Court had no power to hear a criminal appeal, voiding the High Court's judgment.

What this practically means

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Executive summary

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The appellant, Peter Eregai, was convicted by the Resident Magistrate's Court at Kapenguria of rape contrary to section 3(1) as read with section 3(3) of the Sexual Offences Act and sentenced to 20 years imprisonment. His first appeal to the High Court at Kitale (HCCRA No. 129 of 2011) was dismissed by Obaga J on 11th November, 2013. On this second appeal, prosecuting counsel for the State raised, of her own motion, the jurisdictional defect that Obaga J had been appointed as a judge of the Environment and Land Court and not as a judge of the High Court, invoking the Supreme Court's decision in Republic vs Karisa Chengo & 2 Others, which holds that Environment and Land Court judges have no jurisdiction to determine criminal appeals. The Court verified from Gazette Notice No. 14346 of 5th October, 2012 that Obaga J was indeed appointed to the Environment and Land Court, and accordingly held that he was not competent to hear the appeal and that the High Court proceedings and judgment were a nullity. Counsel urged a retrial, but the Court declined because the subordinate court trial had not been impugned; only the High Court appeal proceedings were defective. The Court of Appeal allowed the appeal, set aside the High Court judgment of 11th November, 2013, and remitted the appeal to the High Court for rehearing by a competent High Court judge under section 359 of the Criminal Procedure Code. No costs order was made. The judgment is a single judgment of the full bench of Githinji, Okwengu and Mohammed JJ.A.

Key legal issues

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01

Competence of the judge who heard the first appeal

Holding

Because E. Obaga J was appointed as a judge of the Environment and Land Court and not as a judge of the High Court, he lacked jurisdiction to hear the criminal appeal, rendering the High Court proceedings and judgment a nullity

Reasoning

Relying on the Supreme Court decision in Republic vs Karisa Chengo & 2 Others, the Court confirmed via Gazette Notice No. 14346 of 5th October, 2012 that Obaga J had been appointed to the Environment and Land Court, whose judges' jurisdiction is limited to matters under the Environment and Land Court Act and excludes criminal appeals. A judgment delivered without jurisdiction is a nullity and cannot stand, even where the substantive appeal might have been correctly decided.

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Appropriate remedy - retrial or remittance

Holding

The Court remitted the appeal to the High Court for rehearing rather than ordering a retrial, since the subordinate court trial was unimpaired

Reasoning

Counsel for the State sought only quashing of the conviction plus a retrial order. The Court held that what was defective was only the High Court appeal proceedings; the subordinate court trial had not been impugned. Given that the offence was committed on 15th May, 2011 and the abortive appeal was determined on 11th November, 2013, the just course was to remit the appeal to a competently constituted High Court for rehearing under section 359 of the Criminal Procedure Code.

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Legal principles established

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  • A judge appointed to the Environment and Land Court has no jurisdiction to hear and determine criminal appeals in the High Court; such proceedings and judgment are a nullity

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the High Court dated 11th November, 2013 is set aside
  3. 3.The appeal is remitted back to the High Court for re-hearing by a court constituted by a competent Judge of the High Court as provided under section 359 of the Criminal Procedure Code

Authorities

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Legislation

  • Sexual Offences Actsection 3(1) as read with section 3(3)
  • Criminal Procedure Codesection 359
  • Environment and Land Court Actnot specified

Cases cited (1)

  • Republic vs Karisa Chengo & 2 Others
    [2017] eKLR
On appeal from
High Court of Kenya at Kitale
HCCRA No. 129 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under section 348/379 of the Criminal Procedure Code; appeal against conviction and sentence for rape under section 3(1) as read with section 3(3) of the Sexual Offences Act

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, "Peter Eregai v Republic [2018] KECA 819 (KLR)", Case Analysis (2018). Criminal Appeal No. 102 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/819/eng@2018-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.