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Court of AppealAllowedNot stated in the judgment

Otieno v Republic (Criminal Appeal 213 of 2019) [2024] KECA 394 (KLR)

Court of Appeal
18 April 2024
299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal voided a criminal appeal decided by a bench including an Environment and Land Court Judge, and sent it back for rehearing before a properly empowered High Court Judge.

What this practically means

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Executive summary

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The appellant, Marcella Nyabonyi Otieno, was convicted by the Senior Resident Magistrate's Court at Keroka and sentenced to life imprisonment for robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. Her first appeal against conviction and sentence was heard and dismissed in its entirety by a bench of two High Court Judges, E. Maina and S. Okong'o, JJ. She then lodged a second appeal to the Court of Appeal at Kisii. The Court of Appeal raised, on its own knowledge, the composition of the High Court bench: S. Okong'o, J, was a Judge of the Environment and Land Court, a specialized court. Applying the Supreme Court's decision in Republic v Karisa Chengo & 2 others [2017] eKLR, the Court held that the learned Judge had no jurisdiction to hear a criminal appeal, which is the preserve of the High Court. Consequently, the judgment and proceedings of the High Court in the first appeal were declared a nullity. The Court remitted the matter to the High Court for rehearing before a Judge with appropriate jurisdiction, and directed that the appellant appear before the Deputy Registrar of the High Court in Kisii within two weeks for a hearing date to be fixed on priority. The judgment, delivered at Kisii on 18 April 2024 by Okwengu, Omondi and Ngugi, JJ.A, made no costs order. The conviction and sentence remain intact pending the rehearing of the first appeal.

Key legal issues

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01

Jurisdiction of a specialized-court Judge (ELC) to sit on a criminal first appeal in the High Court

Holding

An ELC Judge has no jurisdiction to hear a criminal appeal; such an appeal is the preserve of the High Court properly constituted, per Republic v Karisa Chengo & 2 others [2017] eKLR.

Reasoning

The Court noted that S. Okong'o, J, was a Judge of the Land and Environment Court, a specialized court dealing with land and environment matters. Applying the Supreme Court's decision in Republic v Karisa Chengo & 2 others [2017] eKLR, the Court held that the learned Judge had no jurisdiction to deal with the appellant's first appeal, it being a criminal appeal reserved for the High Court. The consequence was that the judgment and proceedings in the High Court were a nullity, requiring a rehearing.

p. 1
02

Consequence of proceedings conducted without jurisdiction

Holding

Judgment and proceedings rendered without jurisdiction are a nullity and the matter must be remitted for rehearing before a court with appropriate jurisdiction.

Reasoning

Because the first appeal was heard by a bench that included a Judge without jurisdiction over criminal appeals, the entire High Court judgment and proceedings were a nullity. The Court remitted the matter to the High Court for rehearing before a Judge with appropriate jurisdiction and directed the appellant to appear before the Deputy Registrar in Kisii within two weeks for a priority hearing date.

p. 1

Legal principles established

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  • A Judge of the Environment and Land Court has no jurisdiction to hear a criminal first appeal, which is the preserve of the High Court as properly constituted; proceedings before such a bench are a nullity.

Court orders

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  1. 1.A declaration that the judgment and proceedings in the High Court relating to the appellant's first appeal were a nullity
  2. 2.The matter remitted back to the High Court for rehearing of the appeal before a Judge of the High Court with appropriate jurisdiction
  3. 3.The appellant to appear before the Deputy Registrar of the High Court in Kisii within two (2) weeks from the date of the judgment for a hearing date on the first appeal to be fixed on priority
On appeal from
High Court (bench of two Judges, E. Maina & S. Okong'o, JJ.)
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code/Constitution following dismissal of a first appeal in the High Court; jurisdictional competence of the High Court assessed per Republic v Karisa Chengo & 2 others [2017] eKLR

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, "Otieno v Republic (Criminal Appeal 213 of 2019) [2024] KECA 394 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/394/eng@2024-04-18

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