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Court of AppealAllowedCriminal Appeal (Court of Appeal, Kisumu)

Mwenesi & another v Republic (Criminal Appeal 163 of 2020) [2026] KECA 633 (KLR)

Court of Appeal of Kenya
13 March 2026
ASAsike-MakhandiaHOH. A. OmondiLKL. Kimaru
1,298 words in judgment
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The bottom line

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Kenya's Court of Appeal freed two death-row inmates because a judge appointed to a specialised court had no legal authority to hear their criminal appeal.

What this practically means

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Executive summary

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The appellants were convicted by the Senior Resident Magistrates Court at Vihiga of robbery with violence contrary to section 296(2) of the Penal Code and gang rape contrary to section 10 of the Sexual Offences Act, and were sentenced to death. Their first appeal to the High Court (Chitembwe and Wasilwa, JJ.) was dismissed on 11 December 2013. On second appeal to the Court of Appeal at Kisumu, the appellants raised a jurisdictional objection: Wasilwa J had been substantively appointed as an Employment and Labour Relations Court Judge and therefore lacked jurisdiction to sit on criminal appeals. Both counsel relied on Karisa Chengo & 2 others vs. Republic, in which the Court held that judges of specialized courts have no jurisdiction over criminal matters, and the prosecution supported the appeal. The Court held that the issue was jurisdictional and had to be decided in limine. Following Karisa Chengo and John Kabiro Kimonjo vs. Republic, and applying the Dodhia doctrine of precedent, it found no basis to depart from its previous decisions. The High Court bench was therefore improperly constituted, and the hearing and disposal of the first appeal was a nullity which the Court could not condone or perpetuate. Considering the appellants' lengthy incarceration, the Court found a rehearing would be oppressive. The appeal was allowed, the conviction and death sentence were quashed, and the appellants were ordered set at liberty forthwith unless otherwise lawfully held.

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 appellate court (High Court) was properly constituted, given that Wasilwa J had been substantively appointed as an Employment and Labour Relations Court Judge, and whether the appeal heard before that bench was a nullity

Key legal issues

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01

Jurisdiction of a specialized court judge to hear a criminal appeal

Holding

A judge substantively appointed to a specialized court (ELRC) has no jurisdiction to sit on criminal appeals; participation of such a judge renders the first appellate decision a nullity.

Reasoning

Following Karisa Chengo, the Court construed Articles 161(2), 162(1)(2)(b), 165(3)(5), 166 and 259 of the Constitution together with the Criminal Procedure Code and the ELRC Act, holding that specialized court judges are distinct from High Court judges with different jurisdictions though the same status. Since neither party urged departure from Karisa Chengo, and no new circumstances justified revisiting it, the binding precedent applied. The bench being improperly constituted, the High Court judgment was a nullity the Court could not perpetuate; given the appellants' long incarceration, a remittal for rehearing would be oppressive, so the conviction and sentence were quashed and the appellants set at liberty.

p. 3
02

Stare decisis - whether the Court should depart from its own precedent

Holding

Absent new circumstances or a party's invitation, the Court follows its own previous decision as binding.

Reasoning

The Court invoked the Dodhia formulation that the Court should regard its own previous decisions as binding and depart only when it appears right to do so after careful consideration. No party asked it to depart from Karisa Chengo and no new circumstances compelled reconsideration, so the precedent was followed.

p. 3

Legal principles established

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  • A criminal appeal heard by a High Court bench that includes a judge substantively appointed to a specialized court is a nullity and cannot stand.
  • Where a specialized court judge participated in a criminal appeal, that appeal must be remitted to the High Court for rehearing before a properly constituted bench.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction and sentence (death) are quashed
  3. 3.The appellants shall be set at liberty forthwith unless otherwise lawfully held

The bench

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

AS
majority
HO
majority
LK
majority
On appeal from
High Court
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal from High Court criminal appeal)

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.

The appeal is merited and is allowed, the conviction and sentence quashed. The appellants shall be set at liberty forthwith unless otherwise lawfully held.
p. 3Final orders - quashing of conviction and sentence
The upshot is that the High Court bench was not constituted in accordance with the law. The hearing and disposal of the appeal was therefore a nullity which this Court cannot condone or perpetuate.
p. 3Nullity of improperly constituted first appellate bench
A criminal appeal where a specialized Court Judge had participated is a nullity and must be remitted to the High Court for re-hearing before a properly constituted bench.
p. 3Binding rule from Karisa Chengo as followed
By Jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.
p. 2Nature of jurisdiction (Nyarangi JA in Lillian S)

Issues in the judgment

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minor

Case number and date of the trial court proceedings and High Court appeal number are not stated in the judgment

minor

Counsel relied on Karisa Chengo and both sought setting aside of the High Court judgment, but the court allowed the appeal outright rather than remitting, despite counsel's alternative prayer to remit

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, "Mwenesi & another v Republic (Criminal Appeal 163 of 2020) [2026] KECA 633 (KLR)", Case Analysis (2026). Criminal Appeal (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/633/eng@2026-03-13

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