[2018] KECA 147 (KLR)
The Court of Appeal held that the participation of a Judge of the Environment and Land Court in the hearing and determination of the appellants' first appeal in the High Court rendered those proceedings a nullity. As a result, there was no valid judgment upon which the second appeal could be based. The Court of...
Source-derived case information.
- Citation
- [2018] KECA 147 (KLR)
- Parties
- Appellant: Patrick Opondo Ochola; Appellant: Augustine Juma Muyange; Appellant: Fredrick Oduor; Appellant: Ussein Mobutu Khalasi; Appellant: George Omollo Oduor; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 23 of 2014
- Procedural Posture
- Criminal Appeal / Second Appeal Before the Court of Appeal
- Outcome
- Appeal allowed; High Court proceedings declared a nullity; matter remitted for rehearing.
- Judges
- AM Githinji, GG Okwengu
- Legal Topics
- Jurisdiction of Appellate Courts, Competence of Judges, Criminal Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Opondo Ochola
Appellant
Augustine Juma Muyange
Appellant
Fredrick Oduor
Appellant
Ussein Mobutu Khalasi
Appellant
George Omollo Oduor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal Before the Court of Appeal
Legal Issues
- 1 Whether the participation of a Judge of the Environment and Land Court in the first appellate court rendered the proceedings a nullity.
- 2 Whether the High Court judgment could form a valid basis for the second appeal.
Ratio Decidendi
The Court of Appeal held that the participation of a Judge of the Environment and Land Court in the hearing and determination of the appellants' first appeal in the High Court rendered those proceedings a nullity. As a result, there was no valid judgment upon which the second appeal could be based. The Court of Appeal therefore remitted the matter back to the High Court for the first appeal to be re-heard by Judges of competent jurisdiction.
Court Disposition
Appeal allowed; High Court proceedings declared a nullity; matter remitted for rehearing.
Orders
- The appeal is allowed.
- The proceedings and judgment of the High Court are declared a nullity.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJA.
CRIMINAL APPEAL NO. 23 OF 2014
BETWEEN
PATRICK OPONDO OCHOLA.........................1st APPELLANT
AUGUSTINE JUMA MUYANGE.....................2ND APPELLANT
FREDRICK ODUOR..........................................3RD APPELLANT
USSEIN MOBUTU KHALASI..........................4TH APPELLANT
GEORGE OMOLLO ODUOR......................... 5TH APPELLANT
AND
REPUBLIC............................................................... RESPONDENT
(Appeal from the judgment of the High Court of Kenya
at Busia (Tuiyot & Kibunja, JJ.) dated 13th November, 2011
in
HCCR NO. 76 OF 2012)
**********************
JUDGMENT OF THE COURT
The five appellants now before us were all jointly tried and convicted by the Chief Magistrate’s Court at Busia of four (4) counts of robbery with violence contrary to section 296(2) of the Penal Code. They were each sentenced to suffer death in regard to the first count.
Being aggrieved, the five (5) appellants all appealed to the High Court. Their appeals were consolidated and heard by a Bench of two (2) Judges who dismissed the appeals.
The appellants are now before us in a second appeal. One of the issues taken by the appellants in this appeal is that one of the two (2) Judges who heard their appeal in the first appellate court was a Judge of the Environment and Land Court and therefore not competent to hear the criminal appeal.
Mr. Mule, Senior Assistant Director of Public Prosecutions has availed a copy of the Supreme Court Decision in the Repulic vs Karisa Chengo and 2 others, Petition No. 5 of 2015. Ms Wafula of the Office of the Director of Public Prosecution concedes the appeal on the ground that the Judge of the Environment and Land Court was not competent to hear the first appeal. We concur that that is the position as Mr. Justice Kibunja who heard this appeal with Mr. Justice Tuiyot was employed as a Judge in the Environment and Land Court.
In the circumstances, the proceedings in the first appellate court were a nullity and there is no proper judgment upon which the appeal before us can be based.
Accordingly, we remit this appeal back to the High Court for the first appeal to be re-heard by Judges of the High Court of competent jurisdiction.
Those shall be the orders of the Court.
This judgment is signed by two (2) Judges under Rule 32(2)of the Court of Appeal Rules.
DATED at Kisumu this 13th November, 2018
E. M. GITHINJI
......................................
JUDGE OF APPEAL
HANNAH OKWENGU
......................................
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR