[2019] KECA 1048 (KLR)
The Court of Appeal held that the High Court proceedings were a nullity because the bench included a judge from the Employment and Labour Relations Court, contrary to the Supreme Court's decision in Republic vs Karisa Chengo & 2 others. The law requires that only judges properly appointed to the High Court preside...
Source-derived case information.
- Citation
- [2019] KECA 1048 (KLR)
- Parties
- Appellant: Jacob Prince Mwaniki; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 38 of 2014
- Procedural Posture
- Criminal Appeal / Appeal From High Court Judgment
- Outcome
- appeal allowed; high court judgment set aside; matter remitted for rehearing
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Jurisdiction of High Court, Composition of Bench, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Prince Mwaniki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Judgment
Legal Issues
- 1 Whether the High Court proceedings were a nullity due to improper constitution of the bench.
- 2 Whether a judge from the Employment and Labour Relations Court could sit in a criminal appeal in the High Court.
Ratio Decidendi
The Court of Appeal held that the High Court proceedings were a nullity because the bench included a judge from the Employment and Labour Relations Court, contrary to the Supreme Court's decision in Republic vs Karisa Chengo & 2 others. The law requires that only judges properly appointed to the High Court preside over criminal appeals. As a result, the judgment of the High Court was set aside and the matter was remitted for rehearing before a properly constituted bench.
Court Disposition
appeal allowed; high court judgment set aside; matter remitted for rehearing
Orders
- The appeal is allowed.
- The judgment of the High Court is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, HANNAH
OKWENGU & J. MOHAMMED, JJ.A.)
CRIMINAL APPEAL NO. 38 OF 2014
BETWEEN
JACOB PRINCE MWANIKI..................APPELLANT
AND
REPUBLIC...............................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Kakamega
(Chitembwe & Wasilwa, JJ.) dated 17th February,2014
in HCCRA NO. 144 OF 2012)
*******************
JUDGMENT OF THE COURT
As it is evident from the record that the proceedings in the High Court were presided over by a Bench that included Hon. Wasilwa J, a judge in the Employment and Labour Relations Court, on the authority of the Supreme Court decision in Republic vs Karisa Chengo & 2 others, Petition No. 5 of 2015, the proceedings in the High Court were a nullity.
We therefore, allow the appeal, set aside the judgment of the High Court and remit the matter back to the High Court for re-hearing of the High Court appeal before a competent High Court Bench.
DATED at Kisumu this 29th 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.