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Court of AppealAllowedCriminal Appeal No. 83 of 2015 (R)

John Akotorot Lokitaang v Republic

Court of Appeal
16 January 2019
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
266 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a criminal appeal heard by a judge not qualified to sit on it is a nullity and must be re-heard.

What this practically means

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Executive summary

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This was a second appeal by John Akotorot Lokitaang, who had been tried and convicted by a Senior Resident Magistrate's Court at Lodwar. His first appeal was heard in the High Court at Kitale by a bench of two judges comprising Karanja and Obaga JJ., whose judgment was delivered on 5th November 2013. The sole issue before the Court of Appeal was the competence of that High Court bench. It was not disputed that the first appeal bench included E. Obaga J, a judge of the Environment and Land Court. Applying the Supreme Court's decision in Republic v Karisa Chengo, the Court of Appeal held that Obaga J was not competent to hear the appeal and that the High Court proceedings were therefore a nullity. The Court allowed the appeal to the extent of setting aside the High Court judgment and remitted the matter to the High Court for re-hearing of the first appeal by a bench of competent High Court judges, directing that the re-hearing be given priority given the circumstances of the matter. The judgment is brief and does not address the merits of the underlying conviction, the effect of the nullity on the appellant's liberty, or costs. The binding proposition established is that criminal proceedings heard by a High Court bench that includes a judge not competent to sit as a High Court judge are a nullity and must be set aside and re-heard before a properly constituted bench.

Questions the Court framed

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

  1. 1.Whether the first appeal in the High Court was competently heard by a bench that included a judge of the Environment and Land Court

Key legal issues

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01

Competence of the High Court bench that heard the first appeal

Holding

The first appeal was heard by a bench including E. Obaga J, an Environment and Land Court judge, who was not competent to hear the appeal; the proceedings were a nullity.

Reasoning

It was undisputed that the first appeal bench included a judge of the Environment and Land Court. Following the Supreme Court's decision in Republic v Karisa Chengo on the competence of judges to hear matters, the Court held the High Court proceedings were a nullity and set aside the judgment, remitting the first appeal for re-hearing by a properly constituted bench.

p. 1

Legal principles established

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  • Criminal proceedings before a High Court bench that includes a judge not competent to sit as a High Court judge are a nullity.

Court orders

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  1. 1.Appeal allowed to the extent of setting aside the judgment of the High Court
  2. 2.Matter remitted to the High Court for re-hearing of the first appeal by a bench of competent High Court judges
  3. 3.Hearing of the first appeal in the High Court to be given priority

The bench

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

EG
majority

Wrote the judgment

HO
majority

Wrote the judgment

JM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kitale
HCCRA No. 130 of 2010
Jurisdiction invoked
Appellate jurisdiction over a second appeal in a criminal matter (Court of Appeal jurisdiction; competence of the High Court bench challenged per Republic v Karisa Chengo)

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.

In accordance with the Supreme Court decision in Republic vs Karisa Chengo, the proceedings in the High Court were a nullity as Obaga J was not competent to hear the appeal.
p. 1Nullity of proceedings before an incompetent bench
Accordingly, we allow this appeal to the extent of setting aside the judgment of the High Court and remitting the matter back to the High Court for re-hearing of the first appeal by a Bench of the High Court made up of competent judges.
p. 1Final orders - setting aside and remittal
The hearing of the appeal in the High Court shall be given priority, given the circumstances of this matter.
p. 1Priority of re-hearing

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, "John Akotorot Lokitaang v Republic", Case Analysis (2019). Criminal Appeal No. 83 of 2015 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1038/eng@2019-01-16

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