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Court of AppealDismissedCriminal Appeal No. 116 of 2015

Jomo Boke Marwa v Republic [2019] KECA 186 (KLR)

Court of Appeal
7 October 2019
PWP. N. WakiDMD. K. MusingaJOJ. Otieno Odek
4,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that without a Notice of Appeal filed on time, it cannot hear an appeal at all, no matter how strong the arguments.

What this practically means

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Executive summary

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This was an appeal against the High Court's (Majanja, J.) dismissal of the appellant's application for a new trial under Article 50(6) of the Constitution following his conviction for robbery with violence and death sentence. The appellant had earlier lost his first appeal in HC Criminal Appeal No. 278 of 2010 (Sitati and Lagat Korir, JJ.) but never filed a second appeal to the Court of Appeal. Instead, he petitioned the High Court under Article 50(6), alleging, among other things, that he had not been issued with witness statements, that essential witnesses were not summoned, and that he was unrepresented. The High Court dismissed that application, finding no new and compelling evidence within the meaning articulated by the Supreme Court in Tom Martins Kibisu. Before the Court of Appeal, both parties filed submissions directed at the first High Court appeal rather than at the judgment actually under challenge. The Court held that no Notice of Appeal had been filed against the first High Court judgment and no extension of time sought, so it had no jurisdiction to entertain any challenge to that judgment. Relying on the Supreme Court's decision in Nicholas Salat v IEBC, it restated that the filing of a timely Notice of Appeal is a jurisdictional prerequisite. It further noted that the condition precedent to Article 50(6) — dismissal of the appeal by the highest court entitled to hear it — was unfulfilled since the appellant never appealed to the Court of Appeal. The Court found no new and compelling evidence warranting a retrial, affirmed and upheld Majanja, J.'s judgment, and dismissed the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction over the appeal in the absence of a Notice of Appeal against the judgment in HC Criminal Appeal No. 278 of 2010
  2. 2.Whether the judgment of Majanja, J. dismissing the Article 50(6) application for a new trial should be affirmed

Key legal issues

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01

Whether the Court had jurisdiction to entertain submissions directed at the first High Court appeal (Crim. App. No. 278 of 2010)

Holding

The Court had no jurisdiction because no Notice of Appeal against that judgment was on record and no extension of time was applied for or granted; the submissions of both parties were therefore irrelevant to the appeal actually before the Court

Reasoning

The only Notice of Appeal filed was against the judgment of Majanja, J. dismissing the Article 50(6) application. Drawing on the Supreme Court's decision in Nicholas Salat v IEBC, the Court held that a Notice of Appeal is a jurisdictional prerequisite. Without one against the first High Court judgment, the Court had to lay down its tools as to that judgment and could not delve into its merits.

p. 5
02

Whether the High Court's dismissal of the Article 50(6) application for a new trial should stand

Holding

The Court affirmed and upheld Majanja, J.'s judgment, being satisfied that there was no new and compelling evidence warranting a new trial and that the condition precedent to Article 50(6) was unfulfilled

Reasoning

The record disclosed no new and compelling evidence warranting a new trial under Article 50(6). Further, the appellant had a right of appeal against the first High Court judgment which he never exercised, so the threshold condition that the appeal be dismissed by the highest court entitled to hear it was not met. Since no submissions were directed at Majanja, J.'s judgment, that judgment remained unchallenged and was affirmed.

p. 3

Legal principles established

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  • The filing of a timely Notice of Appeal is a jurisdictional prerequisite; without it an appellate court has no jurisdiction to determine the merits of an appeal
  • A condition precedent to an application under Article 50(6) of the Constitution is that the applicant's appeal must have been dismissed by the highest court to which the person is entitled to appeal

Court orders

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  1. 1.The appeal has no merit and is dismissed
  2. 2.The judgment of the High Court (Majanja, J.) delivered in HC Cr. Appeal No. 35 of 2014 is affirmed and upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
DM
majority
JO
majority
On appeal from
High Court of Kenya at Migori
H.C Cr. App. No. 35 of 2014
Jurisdiction invoked
Appeal against a High Court judgment declining to grant a new trial under Article 50(6) of the Constitution; the court itself held jurisdiction depended on the filing of a Notice of Appeal

Relief refused

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Appeal against the judgment in HC Criminal Appeal No. 278 of 2010 (conviction and sentence)

No Notice of Appeal was filed against that judgment and no extension of time was sought or granted, so the Court had no jurisdiction to entertain it

p. 4

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that this appeal has no merit and is hereby dismissed.
p. 5Disposition
At the risk of repetition, we affirm and uphold the judgment of the High Court (Majanja, J.) delivered in HC Cr. Appeal No. 35 of 2014.
p. 5Final orders affirming the judgment below
It is the filing of a Notice of Appeal that confers jurisdiction to this Court.
p. 5Notice of Appeal as jurisdictional prerequisite
In the absence of an application for extension of time and in the absence of a Notice of Appeal on record, we have no jurisdiction to hear and determine an appeal against the judgment of the High Court in Criminal Appeal No. 278 of 2010.
p. 4Lack of jurisdiction over unappealed judgment

Issues in the judgment

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minor

The judgment is internally inconsistent about the case number of the judgment under appeal, referring variously to 'Criminal Appeal (Application) No. 35 of 2014' and 'HCC Cr. Appeal No. 35 of 2015' in paragraph 19 against 'H.C Cr. App. No. 35 of 2014' in the header

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, "Jomo Boke Marwa v Republic [2019] KECA 186 (KLR)", Case Analysis (2019). Criminal Appeal No. 116 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/186/eng@2019-10-07

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