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Supreme CourtPartially AllowedPetition 5 of 2015

Republic v Chengo & 2 others

Supreme Court of Kenya
26 May 2017
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. NdunguIsaac LenaolaI. Lenaola
15,160 words in judgment
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AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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ELC and ELRC judges cannot hear criminal appeals; improperly constituted court decisions are void.

What this practically means

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The Supreme Court ruled that judges appointed to the Environment and Land Court (ELC) or the Employment and Labour Relations Court (ELRC) cannot hear criminal appeals – only High Court judges can. If a case is heard by a judge without jurisdiction, the entire proceeding is invalid and must be reheard. The court also clarified that the right to free legal representation is not only for capital offences; it applies whenever refusing it would cause substantial injustice, considering factors like the seriousness of the charge and the accused’s ability to pay.

Executive summary

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This appeal by the Director of Public Prosecutions challenged the Court of Appeal's decision that a mixed bench comprising a High Court Judge and an Environment and Land Court (ELC) Judge lacked jurisdiction to hear criminal appeals. The respondents cross-appealed on the issue of legal representation at State expense. The Supreme Court unanimously dismissed the DPP's appeal and affirmed the Court of Appeal's holding that Angote J., an ELC Judge, had no jurisdiction to sit on criminal appeals, as such jurisdiction is reserved for High Court Judges under article 165(3)(e) of the Constitution read with sections 347(1) and 359(1) of the Criminal Procedure Code. The Court held that while the High Court, ELC, and ELRC are of equal status, they are distinct courts with separate jurisdictions, and a judge appointed to one cannot exercise the jurisdiction of another. The Chief Justice's administrative powers do not extend to assigning a judge to a court other than the one to which they were appointed. Consequently, the proceedings before the mixed bench were a nullity ab initio, and the respondents' appeals must be reheard by properly constituted High Court benches. On the cross-appeals, the Supreme Court held that the right to legal representation at State expense under article 50(2)(h) is not progressive but is a fundamental right that vests upon promulgation of the Constitution. However, it is not automatic; it only becomes available if 'substantial injustice would otherwise result', considering factors such as the seriousness of the offence, severity of the sentence, ability to pay, literacy, and complexity of the charge. The Court declined to decide the issue definitively, instead directing that it be determined by the High Court when rehearing the appeals, applying the criteria in the Legal Aid Act and this judgment. The Court ordered that the parties bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether judges appointed to specialized Courts, that is, the ELC and the ELRC, have jurisdiction to hear and determine criminal appeals
  2. 2.whether the respondents’ right to fair trial was infringed by failure to accord them legal representation at the expense of the State
  3. 3.what remedies would fall due, in these circumstances

Key legal issues

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01

Whether judges appointed to specialized Courts (ELC and ELRC) have jurisdiction to hear and determine criminal appeals.

Holding

Judges of the ELC and ELRC have no jurisdiction to hear criminal appeals; that jurisdiction is reserved for Judges of the High Court.

Reasoning

The Supreme Court examined the constitutional and statutory provisions on jurisdiction. Article 165(3)(e) of the Constitution gives the High Court appellate jurisdiction conferred by legislation, and sections 347(1) and 359(1) of the Criminal Procedure Code confer criminal appellate jurisdiction on the High Court. The ELC and ELRC are courts of equal status but different and distinct jurisdictions, as defined by the Environment and Land Court Act and the Employment and Labour Relations Court Act. Article 165(5) prohibits the High Court from entertaining matters reserved for the specialized courts, and by the same token, the specialized courts cannot hear matters reserved for the High Court. The appointment and oath of a judge are specific to the court to which they are appointed, and the Chief Justice's administrative powers do not extend to assigning a judge to a court other than the one to which they were appointed.

p. 18
02

Whether the respondents' right to a fair trial was infringed by failure to accord them legal representation at State expense.

Holding

The issue of whether the respondents ought to have had the right to legal representation at State expense is a matter to be determined at the High Court at the hearing of the appeals afresh, within the criteria laid out by the Legal Aid Act and this Judgment.

Reasoning

The Supreme Court held that the right to legal representation at State expense under article 50(2)(h) is not progressive but is a fundamental right that vests upon promulgation of the Constitution. However, it is not automatic; it only becomes available if 'substantial injustice would otherwise result'. The court set out factors to consider, including the seriousness of the offence, severity of the sentence, ability to pay, literacy, and complexity of the charge. Since the High Court appeals were declared a nullity for lack of jurisdiction, the issue of legal representation at the trial and first appeal must be determined afresh by the High Court when rehearing the appeals.

p. 33
03

Whether the Supreme Court's decision should have retrospective or prospective effect on the numerous appeals determined by similarly constituted mixed benches during the Judicial Service Week.

Holding

The decision applies to the instant appeal and all appeals determined by similarly empanelled High Court benches; those decisions are nullities and must be reheard.

Reasoning

The Supreme Court distinguished the case from those where courts consider retrospectivity of a new constitutional ruling. Here, the issue was lack of jurisdiction, which renders a decision void ab initio. The court held that article 2(4) of the Constitution requires that any act or omission in contravention of the Constitution is invalid. Therefore, despite the impact on the backlog of cases, the court had no choice but to order rehearing of the appeals determined by unconstitutionally constituted benches.

p. 32

Legal principles established

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  • Judges of the ELC and ELRC have no jurisdiction to hear criminal appeals; that power belongs exclusively to High Court judges.
  • The right to legal representation at State expense under Article 50(2)(h) is not limited to capital offences—it applies when substantial injustice would otherwise result.
  • That right is not progressive; it is a fundamental right effective from the Constitution’s promulgation, not dependent on legislation.
  • Proceedings conducted by a court improperly constituted due to lack of jurisdiction are a nullity from the start and must be reheard.
  • Courts must consider factors like offence seriousness, sentence severity, ability to pay, literacy, and charge complexity when deciding if State-funded legal aid is needed.

Court orders

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  1. 1.The appeal herein, against the main decision of the Court of Appeal, fails: and it is hereby reaffirmed that Angote, J, a judge of the Environment and Land Court, could not properly hear and determine High Court at Malindi Criminal Appeals Nos. 49 of 2012, 54 of 2009 and 136 of 2011.
  2. 2.The Court of Appeal Order that the appeals before the High Court be heard afresh by judges of that court, excluding Meoli, J. is hereby upheld.
  3. 3.By virtue of Orders (a) and (b) herein, the issue of whether the appellants ought to have had the right to legal representation at State expense at the magistrate’s and the High Court, is a matter to be determined at the High Court at the hearing of the appeals afresh within the criteria laid out by the Legal Aid Act, No. 6 of 2016 and this Judgment.
  4. 4.The parties shall bear their own respective costs.

The bench

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

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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The appellant's plea that the Court of Appeal erred in holding that Judges of the three superior courts only have jurisdiction to sit in the courts that they were appointed to and none other

The Supreme Court concurred with the Court of Appeal that the bench was improperly constituted and lacked jurisdiction.

p. 32

The 1st and 3rd respondents' cross-appeal seeking a declaration that their right to legal representation at State expense was violated and their trial rendered a nullity

The Supreme Court held that the issue of legal representation at State expense is to be determined at the High Court at the hearing of the appeals afresh within the criteria laid out by the Legal Aid Act and this Judgment.

p. 33

Costs

The parties shall bear their own respective costs.

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.

We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in article 50 (2) (h) are 'if substantial injustice would otherwise result….'
p. 26 Right to legal representation at State expense
We do not agree with the Court of Appeal’s holding in the instant case to the effect that the right guaranteed in article 50 (2) (h) of the Constitution is progressive and that it can only be realized when certain legislative steps have been taken, such as the enactment of the Legal Aid Act.
p. 26 Progressive realization of rights
As we have found, the bench constituted by Meoli J and Angote J had no jurisdiction to determine the appeals. Their decisions were consequently a nullity ab initio.
p. 32 Effect of lack of jurisdiction
It therefore follows that, in the light of the terms of article 2(4) of the Constitution, despite the drawback our decision will have on the backlog of cases in our courts, we have no choice but to accede to the respondents’ plea that their appeals at the High Court level be re-heard.
p. 32 Consequence of unconstitutional bench
The parties shall bear their own respective costs.
p. 33 Costs order

Key timeline

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2009-2012
Three criminal appeals (Nos. 54/2009, 49/2012, 136/2011) filed at the High Court in Malindi.
Before 2017
The appeals were heard by a bench composed of High Court Judge Meoli J and ELC Judge Angote J.
Court of Appeal decision
The Court of Appeal held that Angote J could not sit on a criminal appeal and ordered a fresh hearing.
2017
The Supreme Court affirmed the Court of Appeal’s ruling, declaring the proceedings a nullity for lack of jurisdiction.

Practical implications

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For lawyers

Challenge improperly constituted benches

Immediately review any criminal appeal decided by a bench that included an ELC or ELRC judge. Those judgments are void and can be set aside. For clients convicted in such appeals, file a notice of motion to have the matter reheard by a properly constituted High Court bench. Also, when advising accused persons, argue that the right to State-funded counsel applies beyond capital offences—cite the factors set out in this judgment (seriousness, sentence, literacy, ability to pay).

For businesses

Ensure fair trial for employee cases

If your company or an employee faces criminal charges, confirm that the court hearing any appeal has proper jurisdiction. A conviction from an improperly constituted bench is a nullity, which could delay finality and increase costs. Also, when contesting legal aid decisions, note that the right to State-funded counsel is not automatic—your lawyer can argue against granting it if no substantial injustice would result, based on the factors the court listed.

For individuals

Know your right to free legal aid

If you are charged with a crime and cannot afford a lawyer, you may be entitled to one paid by the State—not just for murder or other capital offences. The court must consider the seriousness of the charge, the possible sentence, your ability to pay, and how complex the case is. If you were convicted by a judge who lacked jurisdiction (e.g., an ELC judge hearing a criminal appeal), that conviction is invalid and you can demand a new trial.

Frequently asked questions

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Can an ELC judge hear a criminal appeal in Kenya?+

No. The Supreme Court ruled that judges appointed to the Environment and Land Court (ELC) or the Employment and Labour Relations Court (ELRC) cannot hear criminal appeals. Only High Court judges have that jurisdiction under the Constitution. A decision made by an ELC judge on a criminal appeal is void.

What is the right to legal representation at State expense in Kenya?+

Under Article 50(2)(h) of the Constitution, an accused person has the right to a lawyer paid by the State if refusing legal aid would cause 'substantial injustice.' This is not limited to capital offences. Courts consider factors like the seriousness of the charge, sentence severity, literacy, and ability to pay.

What happens if a court lacked jurisdiction in Kenya?+

If a court hears a case without proper jurisdiction, the entire proceeding is a nullity from the start. The decision cannot be saved. The case must be heard afresh by a properly constituted court. This applies even if the error was discovered years later, as the Constitution requires invalidating any act done in contravention of it.

Is the right to legal aid in Kenya limited to capital offences?+

No. The Supreme Court clarified that the right to legal representation at State expense under Article 50(2)(h) applies whenever 'substantial injustice would otherwise result.' It is not confined to capital offences. The court must assess each case individually, considering factors like the nature of the offence and the accused's circumstances.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Chengo & 2 others", Case Analysis (2017). Petition 5 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/15/eng@2017-05-26

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