[2018] KECA 175 (KLR)
The Court of Appeal held that, following the Supreme Court's decision in Republic v Karisa Chengo and 2 Others, a judge of the Environment and Land Court lacks jurisdiction to hear and determine criminal appeals in the High Court. Since the first appellate court's bench included such a judge, the proceedings and...
Source-derived case information.
- Citation
- [2018] KECA 175 (KLR)
- Parties
- Appellant: David Juma Atelu; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 32 of 2014
- Procedural Posture
- Criminal Appeal / Second Appellate Court (court of Appeal)
- Outcome
- Appeal allowed; proceedings and judgment of the first appellate court declared a nullity; matter remitted to the High Court for re-hearing before a competent bench.
- Judges
- AM Githinji, GG Okwengu
- Legal Topics
- Jurisdiction of High Court, Composition of Bench, Criminal Appeals, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Juma Atelu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appellate Court (court of Appeal)
Legal Issues
- 1 Whether a judge of the Environment and Land Court has jurisdiction to hear and determine a criminal appeal in the High Court.
- 2 Whether the proceedings and judgment of the first appellate court were valid given the composition of the bench.
Ratio Decidendi
The Court of Appeal held that, following the Supreme Court's decision in Republic v Karisa Chengo and 2 Others, a judge of the Environment and Land Court lacks jurisdiction to hear and determine criminal appeals in the High Court. Since the first appellate court's bench included such a judge, the proceedings and judgment were a nullity. Consequently, there was no valid judgment upon which the appeal to the Court of Appeal could be anchored. The matter was therefore remitted to the High Court for a re-hearing of the first appeal before a properly constituted bench of judges with competent jurisdiction.
Court Disposition
Appeal allowed; proceedings and judgment of the first appellate court declared a nullity; matter remitted to the High Court for re-hearing before a competent bench.
Orders
- The proceedings and judgment of the first appellate court are declared a nullity.
- The matter is remitted to the High Court for re-hearing of the first appeal before a bench of judges with competent jurisdiction.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJA.
CRIMINAL APPEAL NO. 32 OF 2014
BETWEEN
DAVID JUMA ATELU.................................APPELLANT
AND
REPUBLIC................................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Busia (Tuiyot, J.) dated 13th day of November, 2013in HCCR NO. 60 OF 2013)
**********************
JUDGMENT OF THE COURT
It is conceded by the Director Public Prosecutions that the appeal in the first appellate court was heard by two judges, one being a judge of the Environment and Land Court. It is also within our knowledge that Mr. Justice Kibunja who was one of the judges who heard the appeal in the first appellate court was appointed as a judge of the Environment and Land Court vide Gazette Notice No. 14346 of 5th October, 2012.
Pursuant to the Supreme Court decision in Republic v Karisa Chengoand 2 Others, Petition No. 5 of 2015, it is now settled that a judge of the Environment and Land Court has no jurisdiction to hear and determine a criminal appeal in the High Court. In the circumstances, the proceedings before the 1st appellate court were a nullity and there is no proper judgment upon which the appeal before us can be anchored. In the circumstances, we remit this matter back to the High Court for re-hearing of the first appeal before a Bench of the High Court made up of judges with competent jurisdiction.
This judgment is signed by only two (2) Judges under Rule 32(2).
DATED at Kisumu this 13th November, 2018
E. M. GITHINJI
....................................
JUDGE OF APPEAL
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.