[2019] KECA 454 (KLR)
The Court of Appeal held that Justice Mutungi, having been appointed as a Judge of the Environment and Land Court, lacked jurisdiction to hear and determine the appellant's criminal appeal. The Supreme Court in Republic vs. Karisa Chengo & 2 others [2017] eKLR established that judges of the Environment and Land...
Source-derived case information.
- Citation
- [2019] KECA 454 (KLR)
- Parties
- Appellant: Emmanuel Ejore; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 47 of 2017
- Procedural Posture
- Criminal Appeal / Second Appeal Before the Court of Appeal
- Outcome
- Appeal allowed to the extent that the High Court proceedings and judgment are set aside for want of jurisdiction.
- Judges
- AM Githinji, A Mohammed
- Legal Topics
- Defilement Offence, Sexual Offences Act, Jurisdiction of Judge, Criminal Appeals, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Ejore
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal Before the Court of Appeal
Legal Issues
- 1 Whether the High Court judge who heard the first appeal had jurisdiction to determine a criminal appeal.
- 2 Whether the proceedings and judgment of the High Court were a nullity due to lack of jurisdiction.
Ratio Decidendi
The Court of Appeal held that Justice Mutungi, having been appointed as a Judge of the Environment and Land Court, lacked jurisdiction to hear and determine the appellant's criminal appeal. The Supreme Court in Republic vs. Karisa Chengo & 2 others [2017] eKLR established that judges of the Environment and Land Court are limited to matters arising from land and environment and cannot preside over criminal appeals. As a result, the proceedings and judgment of the High Court were a nullity. The Court of Appeal set aside the impugned proceedings and judgment and directed that the appellant's first appeal be placed before the High Court for hearing and disposal by a judge with appropriate...
Court Disposition
Appeal allowed to the extent that the High Court proceedings and judgment are set aside for want of jurisdiction.
Orders
- The proceedings and judgment of the High Court are set aside.
- The appellant's first appeal is to be placed before the High Court for hearing and disposal by a judge with appropriate jurisdiction.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: GITHINJI, OKWENGU & J. MOHAMMED, JJ.A.)
CRIMINAL APPEAL NO. 47 OF 2017
BETWEEN
EMMANUEL EJORE....................................................APPELLANT
AND
REPUBLIC...................................................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya
at Bungoma(Mutungi, J.) dated 13th November, 2013
in
H.C.CR.A. No. 135 of 2012)
******************
JUDGMENT OF THE COURT
[1]This is a second appeal originating from the judgment of the Senior Principal Magistrate’s Court at Webuye in which the appellant, Emmanuel Ejorewas tried and convicted for the offence of defilement contrary to section 8 (1)as read with Section 8 (3)of the Sexual Offences Act. He was sentenced to 20 years imprisonment.
[2] In the first appeal before the High Court, the appellant raised 5 grounds in which he contended that the trial magistrate erred in law and fact in convicting the appellant on the complainant’s evidence which was incredible; dwelling on the evidence of the complainant’s mother which was dubious; relying on medical evidence which was not conclusive; convicting the appellant on investigations which were below par; and convicting the appellant without due regard to his defence.
[3] The hearing of the first appeal proceeded before Justice J.M. Mutungi who delivered a judgment on 13th November 2013 in which he dismissed the appeal in its entirety. It is within our knowledge that Justice John M. Mutungi was appointed as a Judge of the Environment and Land Court through Kenya Gazette Notice No 14346 of 5th October 2012
[4] In Republic vs. Karisa Chengo & 2 others [2017] eKLR; the Supreme Court upheld the decision of this Court that the jurisdiction of a Judge employed as an Environment and Land Court Judge, is limited to the hearing and determination of matters arising out of land and environment, and that such a judge has no jurisdiction to hear criminal appeals. This means that Mutungi J had no jurisdiction to hear the appellant’s appeal. The result is that the proceedings before Mutungi J and the consequent judgment were a nullity. For this reason, there is no proper appeal before us as the appeal is anchored on a judgment that does not exist.
[5] We therefore set aside the proceedings and judgment of the High Court, and order that the appellant’s first appeal be placed before the High Court for hearing and disposal by a Judge with appropriate jurisdiction.
Those shall be the orders of this Court.
Dated and delivered at Eldoret this 25th day of July, 2019.
E. M. GITHINJI
...................................
JUDGE OF APPEAL
H. M. OKWENGU
....................................
JUDGE OF APPEAL
J. MOHAMMED
...................................
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR.