Republic v Pepela & 24 others (Criminal Appeal 64 & 66 - 89 of 2016 (Consolidated)) [2024] KECA 204 (KLR)
The bottom line
#The Court of Appeal threw out a High Court judgment covering 25 military desertion appeals because the judge decided them all in one defective ruling.
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 appeals raise issues of law, notwithstanding the restriction in section 361(1)(a) of the Criminal Procedure Code
- 2.Whether the 1st appellate court rightly consolidated the appeals and delivered a single judgment
- 3.Whether the trial Judge failed to properly re-evaluate the evidence on record
- 4.Whether the prosecution proved its case to the required standard
Key legal issues
#Jurisdiction of the second appellate court - whether the appeals raise matters of law
The preliminary objection fails; the appeal properly lies before the Court because the grounds engage interpretation of statutory provisions and the complaint of dereliction of the first appellate court's duty to re-evaluate evidence.
Applying the Supreme Court's three elements in Gatirau Peter Munya (technical, practical and evidentiary), the grounds requiring interpretation of sections 2, 74(2)(e) and 75(1) of the Kenya Defence Forces Act are technical elements, hence matters of law. Further, an allegation that the High Court failed to re-evaluate the evidence and reach independent conclusions is itself a question of law squarely within the second appellate court's mandate under section 361(1)(a).
Whether the High Court rightly delivered a single judgment in 25 separate appeals without a consolidation order
No; although a single compliant judgment would have been permissible, the impugned judgment did not determine any of the 25 appeals as required by section 169(1) of the Criminal Procedure Code and was therefore a nullity.
The record showed no order of consolidation, counsel having preferred that the appeals be heard without consolidation. Section 169(1) mandates that a judgment contain the points for determination, the decision thereon and the reasons. The impugned judgment made no reference to the verdicts, facts or evidence in each appeal. Had it exhaustively addressed each appeal, it would have been unimpeachable; failing that, it was a nullity.
Whether the High Court discharged its duty to re-evaluate the evidence
No; the High Court failed to re-evaluate the evidence in each appeal and its judgment was declared a nullity on this ground as well.
The 25 appeals arose from nine separate court martial verdicts on different dates, facts and evidence. The judgment made no reference to any verdict, disclosed no facts or evidence, did not weigh prosecution against defence evidence, and offered no analysis of whether the court martial properly applied the law. These glaring deficiencies warranted declaring the judgment a nullity.
Whether the prosecution proved its case to the required standard
The issue fell away and was not determined because the High Court judgment was declared a nullity.
Having nullified the first appellate judgment, the Court held there was no surviving decision capable of sustaining determination of the merits question; the question whether the prosecution proved desertion to the required standard therefore required no answer.
Whether a rehearing should be ordered
Yes; the appeals were remitted to the High Court for rehearing before a different judge on a priority basis.
Guided by the factors in Mwambega Allan Mwajimbo (injustice to the appellant, illegalities in the original trial, elapsed time, whose error occasioned the problem, availability of witnesses), the Court found the defect was entirely of the court's making, no witnesses would be needed since rehearing entails re-evaluation of the record, and the lapse of time required expedition.
Legal principles established
#- A single judgment disposing of multiple separate criminal appeals is permissible only if it sets out the points for determination, the decision and the reasons for each appeal in compliance with section 169(1) of the Criminal Procedure Code; otherwise it is a nullity.
- On a second appeal, the Court of Appeal is confined to matters of law, but a complaint that the first appellate court failed to re-evaluate the evidence and arrive at independent conclusions is a matter of law within its jurisdiction.
- A first appellate court must go beyond a rehash of the record and subject the entire evidence to thorough scrutiny to arrive at its own independent conclusions.
- This Court has a duty to pay homage to concurrent findings of fact by the two courts below unless they are based on no evidence, a perversion of the evidence, or no reasonable tribunal properly directing itself would reach them.
- Where a judgment is declared a nullity for failure to render judgments in each appeal, a rehearing is appropriate where the mistake was the court's own making and no witnesses need be recalled.
Court orders
#- 1.The judgment dated 21st August (2015/2018 as inconsistently stated in the judgment) is declared a nullity
- 2.The appeals are remitted back to the High Court for rehearing by another judge other than the judge that heard the appeals
- 3.The re-hearing of the appeals should be expedited and determined on a priority basis, having regard to the period that has so far elapsed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya, Mombasa
- HCCRA Nos. 153 of 2014, 4 of 2015, 3 of 2015, 181 of 2014, 13 of 2015, 19 of 2015, 18 of 2015, 22 of 2015, 17 of 2015, 175 of 2014, 174 of 2014, 173 of 2014, 8 of 2015, 9 of 2015, 10 of 2015, 2 of 2015, 22 of 2015, 23 of 2015, 24 of 2015, 25 of 2015, 7 of 2015, 6 of 2015, 168 of 2014, 171 of 2014, 176 of 2014 and 172 of 2014
- Jurisdiction invoked
- Section 361(1)(a) and 361(2) of the Criminal Procedure Code (second appeal on matters of law)
- Consolidated with
- Mombasa Criminal Appeals Nos. 66 to 89 of 2016
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 judgment dated 21st August 2018 is hereby declared a nullity;
The appeals specified herein are remitted back to the High Court for rehearing by another judge other than the judge that heard the appeals; and
The re-hearing of the appeals should be expedited and determined on a priority basis, having regard to the period that has so far elapsed.
Consequently, to the extent that the judgment did not determine any of the appeals, it was rendered a nullity, and we so find.
had the Judge issued a single judgment, where all issues in each appeal was exhaustively addressed so that it could be seen to have complied with all the requirements of section 169 (1) for each case, the Judge would not have been faulted for delivering such single judgment.
Failure to properly re-evaluate the evidence on record would be a serious omission on the part of the first appellate court, and may warrant interference by this Court.
These are second appeals where this Court’s mandate is limited by section 361(1) (a) of the Criminal Procedure Code to consider issues of law only
A first appeal always proceeds by way of re-hearing based on the evidence on record and an appellant is therefore entitled to expect that the first appellate court will go beyond a mere rehashing of what is on record or a repetition of the findings of the trial court.
Issues in the judgment
#The judgment repeatedly dates the impugned High Court judgment as 21st August 2015, but the final order declares a judgment dated 21st August 2018 a nullity - an internal contradiction on the date of the decision under review.
The narrative contains repeated mis-numbered references to respondents (e.g. the 4th respondent's charge described as involving the 5th respondent's defence; the 7th respondent's charge described as involving the 8th respondent's defence; paragraph 71 stating 'the 8th respondent appealed' in respect of the 23rd respondent).
The paragraph numbering of the judgment is irregular, jumping from paragraph 90 to 94, then to 96, 97, 100 and 111, suggesting missing or mis-numbered paragraphs.
The judgment does not state its own case title or neutral citation; the title recorded in this brief is reconstructed from the parties named in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Pepela & 24 others (Criminal Appeal 64 & 66 - 89 of 2016 (Consolidated)) [2024] KECA 204 (KLR)", Case Analysis (2024). Mombasa Criminal Appeal No. 64 of 2016 (consolidated with Mombasa Criminal Appeals Nos. 66–89 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/204/eng@2024-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.