Emmanuel Ejore v Republic [2019] KECA 454 (KLR)
The bottom line
#Kenya's Court of Appeal voided a criminal appeal decided by a land-court judge, ruling his judgment never legally existed and ordering a fresh hearing.
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 first appeal was properly heard and determined by a judge whose appointment was to the Environment and Land Court
- 2.What orders should follow where the first appeal proceedings and judgment are a nullity for want of jurisdiction
Key legal issues
#Whether the first appellate court had jurisdiction to hear the appellant's criminal appeal
Mutungi J, having been appointed a Judge of the Environment and Land Court, lacked jurisdiction to hear the criminal appeal; his proceedings and judgment were a nullity.
The court invoked the Supreme Court's decision in Republic v Karisa Chengo, which upheld that Environment and Land Court judges are limited to land and environment matters and cannot hear criminal appeals. A judgment rendered without jurisdiction is a nullity, void ab initio, and cannot anchor a further appeal. The Court of Appeal therefore had no valid first appeal before it and could not engage with the merits of the conviction or sentence.
The appropriate remedy where the first appeal is a nullity
The proceedings and judgment of the High Court were set aside and the first appeal remitted to the High Court for hearing before a judge with appropriate jurisdiction.
Rather than determine the second appeal on the merits, which would have required a valid first appeal judgment, the court granted the remedy that preserved the appellant's right of appeal: setting aside the void proceedings and ordering a fresh hearing of the first appeal by a properly empowered judge. No consequential orders were made regarding the conviction, which remains subject to the fresh first appeal.
Legal principles established
#- A judge appointed to the Environment and Land Court has no jurisdiction to hear criminal appeals; a criminal appeal heard and determined by such a judge, and the resulting judgment, are a nullity.
- Where a first appeal judgment is a nullity for want of jurisdiction, the proceedings and judgment must be set aside and the appeal remitted for hearing before a judge with appropriate jurisdiction.
Court orders
#- 1.The proceedings and judgment of the High Court (Mutungi, J.) were set aside
- 2.The appellant's first appeal is to be placed before the High Court for hearing and disposal by a Judge with appropriate jurisdiction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- H.C.CR.A. No. 135 of 2012
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a second appeal in a criminal matter, read with the Supreme Court's jurisdictional ruling in Republic v Karisa Chengo on the limited jurisdiction of Environment and Land Court judges
Relief refused
#Determination of the appellant's second appeal on the merits of the conviction and sentence
There was no valid first appeal judgment to found a second appeal, as the first appeal was heard by a judge without jurisdiction
Costs
No order as to costs was made in the judgment.
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.
the jurisdiction of a Judge employed as an Environment and Land Court Judge, is limited to the hearing and determination of matters arising out of land and environment, and that such a judge has no jurisdiction to hear criminal appeals.
This means that Mutungi J had no jurisdiction to hear the appellant’s appeal. The result is that the proceedings before Mutungi J and the consequent judgment were a nullity.
For this reason, there is no proper appeal before us as the appeal is anchored on a judgment that does not exist.
We therefore set aside the proceedings and judgment of the High Court, and order that the appellant’s first appeal be placed before the High Court for hearing and disposal by a Judge with appropriate jurisdiction.
Issues in the judgment
#The judgment states it is within the court's knowledge that Mutungi J was appointed to the Environment and Land Court by Gazette Notice of 5th October 2012, yet he delivered the first appeal judgment on 13th November 2013; the judgment does not explain the appointment timeline or the circumstances of the hearing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Ejore v Republic [2019] KECA 454 (KLR)", Case Analysis (2019). Criminal Appeal No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/454/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.