Cox & 2 others v Okello (Criminal Appeal E025 of 2022) [2024] KECA 1693 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the High Court cannot revise an acquittal, so private prosecutors must appeal rather than seek revision to challenge such orders.
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 court had the jurisdiction to revise the respondent's acquittal
- 2.Whether the superior court was right in finding that the 3rd appellant was not diligent
- 3.Whether the superior court was correct in finding that the respondent can be acquitted under Section 202 of the CPC in his absence and on a mention date
Key legal issues
#Whether the High Court had jurisdiction to revise an acquittal order
No. Section 364(1)(b) of the CPC permits the High Court to alter or reverse any order of a subordinate court other than an order for acquittal, and Section 364(4) bars conversion of an acquittal into a conviction. Framing the application as a constitutional petition under Article 165(6) and (7) could not confer jurisdiction the statute withholds.
The Court held that jurisdiction flows from the constitution or legislation and a court cannot arrogate to itself jurisdiction exceeding that conferred by law. Although the Constitution is the framework, statutes give specific mandates in specific matters. The appellants' recourse to Article 165(6) and (7) was an attempt to circumvent the mandatory limitation in Section 364; the Judge rightly declined revision.
Whether the private prosecutors were diligent in prosecuting the case
No. The 3rd appellant, an advocate, was present when the mention date was given and was obliged either to note the order or peruse the court record; he failed to follow up for about a year and a half, so the dismissal for want of prosecution was justified.
The Court traced the chronology: after the warrant issued in January 2019, the 3rd appellant missed successive mention dates and only resurfaced on 8th July 2020. It was incumbent on the appellants to come to court to report progress and their intention to continue prosecution. The lower court was therefore right to dismiss the case as the appellants had lost interest in it.
Whether the respondent could be acquitted under Section 202 of the CPC in his absence and on a mention date
No. The acquittal was improper because the respondent never appeared, never took plea, and there was no proof the appellants were served with summons for that date; however, the impropriety could not be cured through revision.
Section 202 applies only where the accused appears in obedience to a summons for the hearing of the case or is brought under arrest, and the complainant, having notice of the hearing, fails to appear. The respondent had not taken plea and was absent on the acquittal date, so he could not be acquitted of charges to which he had not pleaded; yet the mandatory limits on revision meant the impropriety could only be challenged by appeal.
Legal principles established
#- The High Court's revisionary jurisdiction in criminal matters under Section 364 of the Criminal Procedure Code does not extend to revising an order of acquittal, and the High Court cannot convert a finding of acquittal into one of conviction; a litigant cannot circumvent this statutory limitation by invoking Article 165(6) and (7) of the Constitution.
- Under Section 202 of the CPC, an accused person who has neither been served with a summons to appear for hearing nor taken plea cannot be lawfully acquitted in his absence; the section applies only where the accused appears in obedience to a summons or is brought before the court under arrest and the complainant, having notice of the hearing, does not appear.
- Where a party has an appropriate forum before which to seek redress, it is incumbent upon them to use that forum as opposed to invoking the constitutional jurisdiction of the court at the outset.
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court sitting in revision; first appellate jurisdiction under statute, following Isaac Ng'ang'a Kahiga and anor v Republic
Relief refused
#Reversal of the High Court's dismissal of the application for revision of the acquittal order
Section 364(1)(b) and (4) of the CPC in mandatory terms bars the High Court from revising an acquittal order or converting an acquittal into a conviction
Setting aside of the acquittal/dismissal of the private prosecution under Section 202 of the CPC
Although the acquittal was improper, the appellants elected revision rather than appeal, and the Court found them not diligent in prosecuting the case
Costs
No orders to cost - the Court dismissed the appeal 'with no orders to cost'
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.
A court's jurisdiction fiows from either the constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred by the constitution or other written law.
Ultimately, we find no merit in this appeal and dismiss it with no orders to cost. It is so ordered.
He could therefore, not be acquitted of that to which he had not yet pleaded. We therefore find that the acquittal order made by the trial court and upheld by the superior court was improper.
It is trite that where a party has an appropriate forum before which to seek redress, it is incumbent upon them to raise their concerns before the said forum as opposed to invoking the constitutional jurisdiction of the court at the outset
The foregoing being the stipulation of the law in mandatory terms, the learned Judge could not arrogate to himself jurisdiction exceeding that which is conferred by law. We therefore find no basis to fault the Judge for so finding.
Issues in the judgment
#The judgment contains a possible internal tension: it holds the acquittal order improper while affirming the superior court's decision declining to disturb it, explaining the gap only through the election of revision rather than appeal.
The judgment does not state the Court of Appeal case number, the High Court case number, or a neutral citation, limiting precise identification of the decision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cox & 2 others v Okello (Criminal Appeal E025 of 2022) [2024] KECA 1693 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1693/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.