Kamande v Republic (Criminal Appeal (Application) 102 of 2018) [2023] KECA 1239 (KLR)
The bottom line
#Kenya's Court of Appeal has allowed Ruth Kamande to take her self-defence and battered women syndrome arguments to the Supreme Court.
What this practically means
#Executive summary
#Key legal issues
#Certification threshold under article 163(4)(b)
The applicant identified questions of general public importance - the applicability, standard and burden of proof of the battered woman syndrome defence, and the standard and burden of proof in a self-defence plea - which transcend the particular case and merit the Supreme Court's attention.
The court restated the Hermanus Steyn principles and the Kefhau elaboration, including that the questions must have arisen in the courts below and been the subject of judicial determination. It found the intended appeal raises novel questions of law on battered women syndrome and self-defence that will continually engage the courts and bear on the public interest, particularly the rights of domestic violence victims.
Effect of non-opposition by the respondent
Non-opposition does not relieve the court of its duty to satisfy itself that the certification threshold is met.
Although the respondent neither opposed nor filed a response, and in fact supported the application, the court held that it remains its duty to independently consider and appraise whether the Hermanus principles for certification have been satisfied before granting leave.
Legal principles established
#- To succeed in a certification application under article 163(4)(b), the applicant must demonstrate that the issue transcends the particular case and bears on the public interest; but an unopposed application must still be appraised on its merits by the court.
- A novel issue of law with few decisions, such as battered women syndrome, may warrant certification so that the Supreme Court may interrogate it.
Court orders
#- 1.The notice of motion dated February 17, 2021 is allowed
- 2.Certification and leave granted to appeal to the Supreme Court against the judgment of the Court of Appeal delivered on November 6, 2020
- On appeal from
- High Court (conviction for murder; appeal dismissed by Court of Appeal on November 6, 2020)
- Not stated in judgment
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - certification by the Court of Appeal that a matter of general public importance is involved; article 164(4)(b) invoked for the application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande v Republic (Criminal Appeal (Application) 102 of 2018) [2023] KECA 1239 (KLR)", Case Analysis (2023). Notice of motion dated February 17, 2021 (Criminal Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1239/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.