[2024] KECA 394 (KLR)
The Court of Appeal held that the participation of S. Okong'o, J, a judge of the Environment and Land Court, in the hearing and determination of the appellant's first criminal appeal in the High Court rendered the proceedings and judgment a nullity for want of jurisdiction. The Supreme Court in Republic v Karisa...
Source-derived case information.
- Citation
- [2024] KECA 394 (KLR)
- Parties
- Appellant: Marcella Nyabonyi Otieno; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 213 of 2019
- Procedural Posture
- Criminal Appeal / Second Appeal Before the Court of Appeal
- Outcome
- Appeal allowed; High Court judgment and proceedings set aside; matter remitted for rehearing before a properly constituted High Court bench.
- Judges
- HM Okwengu, HA Omondi, JM Ngugi
- Legal Topics
- Jurisdiction of High Court, Criminal Appeals, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marcella Nyabonyi Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal Before the Court of Appeal
Legal Issues
- 1 Whether the High Court bench that heard the first appeal had jurisdiction to determine a criminal appeal.
- 2 Whether the proceedings and judgment of the High Court in the first appeal were a nullity due to lack of jurisdiction.
Ratio Decidendi
The Court of Appeal held that the participation of S. Okong'o, J, a judge of the Environment and Land Court, in the hearing and determination of the appellant's first criminal appeal in the High Court rendered the proceedings and judgment a nullity for want of jurisdiction. The Supreme Court in Republic v Karisa Chengo & 2 others [2017] eKLR established that judges of specialized courts, such as the Environment and Land Court, do not have jurisdiction to hear criminal matters, which are exclusively within the purview of the High Court. Consequently, the Court of Appeal set aside the judgment and proceedings of the High Court and remitted the matter for rehearing before a properly...
Court Disposition
Appeal allowed; High Court judgment and proceedings set aside; matter remitted for rehearing before a properly constituted High Court bench.
Orders
- The judgment and proceedings of the High Court in the first appeal are declared a nullity and set aside.
- The matter is remitted to the High Court for rehearing of the appeal before a judge with appropriate jurisdiction.
Full Case Text
Judgment text and source record
21 paragraphs
Otieno v Republic (Criminal Appeal 213 of 2019) [2024] KECA 394 (KLR) (18 April 2024) (Judgment)
Neutral citation: [2024] KECA 394 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 213 of 2019
HM Okwengu, HA Omondi & JM Ngugi, JJA
April 18, 2024
Between
Marcella Nyabonyi Otieno
Appellant
and
Republic
Respondent
(An Appeal from the Judgment of the High Court of Kenya at Kisii (E.N. Maina & S. Okongo, JJ) Dated 30th December, 2013 in Kisii HC. Criminal Case No. 7 of 2012 Criminal Appeal 7 of 2012 )
Judgment
1. The appellant Marcella Nyabonyi Otieno was convicted by the Senior Resident Magistrate’s Court at Keroka and sentenced to life imprisonment for the offence of Robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code.
2. Being aggrieved by the judgment of the trial court, she lodged an appeal in the High Court against conviction and sentence, which appeal was heard by a bench of two Judges (E. Maina & S. Okong’o, JJ.). The appeal was dismissed it its entirety.
3. The appellant is now before us in a second appeal. However, it is within our knowledge that S. Okong’o, J, is a Judge in the Land and Environment Court (ELC) which is a specialized court dealing with land and environment matters. In accordance with the decision of the Supreme Court in Republic v Karisa Chengo & 2 others [2017] eKLR, the learned Judge had no jurisdiction to deal with the appellant’s first appeal it being a criminal appeal which is the preserve of the High Court.
4. In the circumstances, the judgment and proceedings in the High Court relating to the appellant’s first appeal were a nullity. We therefore hereby remit the matter back to the High Court for rehearing of the appeal before a Judge of the High Court with appropriate jurisdiction.
5. The appellant shall appear before the Deputy Registrar of the High Court in Kisii within two (2) weeks from today for a hearing date on the first appeal to be fixed on priority.
DATED AND DELIVERED AT KISII THIS 18TH DAY OF APRIL, 2024. HANNAH OKWENGU..............................JUDGE OF APPEALH.A. OMONDI..............................JUDGE OF APPEALJOEL NGUGI..............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar