[2019] KECA 1049 (KLR)
The Court of Appeal held that the High Court bench that heard the appellant's first appeal was not properly constituted because one of the judges was from the Environment and Land Court, which lacks jurisdiction to hear criminal appeals. As a result, the proceedings and judgment of the High Court were a nullity. The...
Source-derived case information.
- Citation
- [2019] KECA 1049 (KLR)
- Parties
- Appellant: Erupe Lokutan; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 77 of 2015
- Procedural Posture
- Criminal Appeal / Second Appeal to the Court of Appeal From High Court Judgment
- Outcome
- Appeal allowed to the extent of setting aside the High Court proceedings and judgment; matter remitted for rehearing before a competent bench.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Robbery With Violence, Jurisdiction of Courts, Composition of Bench, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erupe Lokutan
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal to the Court of Appeal From High Court Judgment
Legal Issues
- 1 Whether the High Court bench that heard the first appeal was properly constituted and had jurisdiction.
- 2 Whether the proceedings and judgment of the High Court were a nullity due to improper constitution of the bench.
- 3 Whether the appellant should be acquitted or the matter remitted for rehearing.
Ratio Decidendi
The Court of Appeal held that the High Court bench that heard the appellant's first appeal was not properly constituted because one of the judges was from the Environment and Land Court, which lacks jurisdiction to hear criminal appeals. As a result, the proceedings and judgment of the High Court were a nullity. The Court of Appeal set aside the High Court's proceedings and judgment, and directed that the appeal be reheard before a competent bench of the High Court. The appellant's conviction and sentence by the magistrate's court remain in force pending the rehearing. The Court rejected the appellant's plea for acquittal, holding that the merits of the appeal had not been properly...
Court Disposition
Appeal allowed to the extent of setting aside the High Court proceedings and judgment; matter remitted for rehearing before a competent bench.
Orders
- The proceedings and judgment of the High Court in HCCRA No. 108 of 2011 are set aside as a nullity.
- The appeal is remitted to the High Court for rehearing before a competent bench.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: E. M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
CRIMINAL APPEAL NO. 77 OF 2015
BETWEEN
ERUPE LOKUTAN...................................APPELLANT
AND
REPUBLIC ............................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Kitale, (Karanja, J.) dated 5th December, 2013
in
HCCRA NO. 108 OF 2011)
*********************
JUDGMENT OF THE COURT
[1] Erupe Lokutan, the appellant herein, was tried and convicted by the Magistrate’s Court at Lodwar for the offence of Robbery with Violence contrary to section 296(2) of the Penal Code and sentenced to death. He appealed to the High Court against his conviction and sentence. His appeal was heard and dismissed. He is now before us in a second appeal.
[2] Learned Prosecuting Counsel, Ms Karanja, has conceded the appeal on the ground that one of the judges who heard the appeal was a judge of the Environment and Land Court and therefore had no jurisdiction to hear the appeal. She urges the Court to order re-hearing of the appeal. Mr. Bichange, learned counsel who appeared for the appellant, objects to an order for re-hearing of the appeal. He urges the Court to acquit the appellant.
[3] We have considered this matter. In light of the Supreme Court decision in Republic vs Karisa Chengo & 2 others, it is evident that the hearing of the appellant’s appeal in the first appellate court was a nullity as the Bench was not properly constituted. In the circumstances, the judgment delivered by the High Court dismissing the appellant’s appeal was also a nullity.
[4] In effect what this means is that the appellant’s conviction and sentence by the magistrate’s court still stands. The issue of an acquittal cannot arise as the appellant’s appeal has not been properly heard.
[5] In the circumstances, the orders that commends itself to us is to allow this appeal to the extent of setting aside the proceedings and judgment of the 1st appellate court and direct that the appeal be re-heard before a competent Bench of the High Court and that the matter be given priority. Those shall be the orders of the Court.
DATED and Delivered at Eldoret this 15th January, 2019.
E. M. GITHINJI
…………………………..
JUDGE OF APPEAL
HANNAH OKWENGU
…………………….
JUDGE OF APPEAL
J. MOHAMMED
………………………
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR.