IN THE COURT OF APPEAL AT ELDORET (CORAM: E. M. GITHINJI, HANNAH OKWENGU & J. MOHAMMED, JJ.A) CRIMINAL APPEAL NO. 110 OF 2017 BETWEEN MESHACK SIMIYU MUKOLWE....................APPELLANT AND REPUBLIC.......................................................RESPONDENT (Being an Appeal against a Judgment from the High Court of Kenya at Kitale, (E. Obaga, J) dated 5 th December, 2013 in HCCRA. NO. 121 OF 2012) ********************* JUDGMENT OF THE COURT [1] Meshack Simiyu Mukolwe, the appellant herein, was convicted by the Senior Principal Magistrate at Kitale of the offence of defilement of a child aged 15 years contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to 20 years imprisonment. [2] He appealed against conviction and sentence at the High Court Kitale. The appeal was heard by E. Obaga, J. who subsequently dismissed the appeal in its entirety. [3] The appellant appealed to this Court from the judgment of the High Court. One of the grounds of appeal states:- “The judgment of the Superior Court is null and void ab initio by virtue of the fact that the case was heard and judgment delivered by a Judge of the Environment and Land Court.” [4] Mr. Miyienda, the appellant’s counsel has filed written submissions and contends, among other things, that, a judge of the Environment and Land Court has no jurisdiction to hear and determine criminal appeals and that the appellant should be set free. [5] The respondent has also filed written submissions relying on the judgment of the Supreme Court in Republic V. Karisa Chengo & 2 others – Supreme Court Petition No. 5 of 2015 (Karisa Chengo’s case). Counsel conceded that the appeal was determined by a judge of the Environment and Land Court and that the judgment is a nullity. Counsel asked for an order for the re-hearing of appeal by a competent court. [6] It is conceded, and it is in fact a matter of public record that E. Obaga is a Judge of the Environment and Land Court and not a Judge of the High Court which is vested with power to hear Criminal Appeals. From the decision of the Supreme Court in Karisa Chengo’s case, Judges of specialised courts like E. Obaga, J. cannot exercise the jurisdiction reserved for the High Court. The impugned judgment is in effect not a judgment of the High Court and is thus a nullity.
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[7] Accordingly, the appeal is allowed. The judgment of E. Obaga, J. is quashed. In the interest of justice, the High Court Kitale Criminal Appeal No. 121 of 2012 shall be re-heard by a judge of the High Court on priority basis Dated and delivered at Eldoret this 17th day of January, 2019. E. M. GITHINJI ........................................ JUDGE OF APPEAL HANNAH OKWENGU .......................................... JUDGE OF APPEAL J. MOHAMMED ......................................... JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR
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