[2018] KECA 819 (KLR)
The Court of Appeal found that the High Court judge who heard and determined the appellant's criminal appeal was appointed to the Environment and Land Court and, as per the Supreme Court's decision in Republic vs Karisa Chengo & 2 Others [2017] eKLR, lacked jurisdiction to hear criminal appeals. Consequently, the...
Source-derived case information.
- Citation
- [2018] KECA 819 (KLR)
- Parties
- Appellant: Peter Eregai; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 102 of 2015
- Procedural Posture
- Criminal Appeal / Appeal From High Court Judgment to Court of Appeal
- Outcome
- Appeal allowed; High Court judgment set aside; appeal remitted to High Court for re-hearing.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Jurisdiction of High Court, Sexual Offences, Criminal Appeals, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Eregai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Judgment to Court of Appeal
Legal Issues
- 1 Whether a judge appointed to the Environment and Land Court has jurisdiction to hear and determine a criminal appeal in the High Court.
- 2 Whether the proceedings and judgment of the High Court in this matter are a nullity due to lack of jurisdiction.
- 3 Whether the appeal should be remitted to the High Court for re-hearing.
Ratio Decidendi
The Court of Appeal found that the High Court judge who heard and determined the appellant's criminal appeal was appointed to the Environment and Land Court and, as per the Supreme Court's decision in Republic vs Karisa Chengo & 2 Others [2017] eKLR, lacked jurisdiction to hear criminal appeals. Consequently, the proceedings and judgment of the High Court were a nullity. The Court of Appeal determined that the appropriate remedy was to set aside the High Court judgment and remit the appeal for re-hearing before a competent judge of the High Court, as the original trial in the subordinate court was not impugned and only the appellate proceedings were affected by the jurisdictional defect.
Court Disposition
Appeal allowed; High Court judgment set aside; appeal remitted to High Court for re-hearing.
Orders
- The appeal is allowed.
- The judgment of the High Court dated 11th November, 2013 is set aside.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: E. M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
CRIMINAL APPEAL NO. 102 OF 2015
BETWEEN
PETER EREGAI...................................................APPELLANT
AND
REPUBLIC..........................................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Kitale, (E. Obaga, J.) dated the 11th day of November, 2013
in
HCCRA NO. 129 OF 2011)
***********************
JUDGMENT OF THE COURT
[1]The appellant Peter Eregai was convicted by the Resident Magistrate’s Court at Kapenguria of the offence of rape contrary to section 3(1) as read with section 3(3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve 20 years imprisonment.
[2] He appealed to the High Court against the conviction and sentence. The appeal was heard by Obaga J who delivered a judgment on 11th November, 2013 in which he dismissed the appellants appeal against conviction and sentence.
[3] The appellant is aggrieved and has lodged this appeal against both conviction and sentence. When this appeal came for hearing, learned prosecuting counsel Mrs. Brenda Oduor, pointed out that the proceedings in the High Court were a nullity as the appeal was heard by E. Obaga J who was appointed as a judge of the Environment and Land Court and not as a judge of the High Court. Referring to the Supreme Court decision in Republic vs Karisa Chengo & 2 Others [2017] eKLR (Karisa Chengo), where the Supreme Court held in essence that the jurisdiction of the judges appointed to the Environment and Land Court is limited to the matters provided in the Environment and Land Court Act and hence they have no jurisdiction to determine criminal appeals, Mrs. Oduor asked the court to quash the conviction but urged the Court to order a re-trial.
[4] We have perused Gazette Notice No. 14346 of 5th October, 2012 and confirmed that indeed E. Obaga J was appointed as a judge of the Environment and Land Court. In accordance with the judgment of the Supreme Court in the Karisa Chengo case, the learned judge who heard and determined the appeal in the High Court that gave rise to the decision subject of the appeal now before us was not competent to hear the appeal. Thus the proceedings and the judgment of the High Court are a nullity. Although the court was urged to order a retrial, the trial in the subordinate court has not been impugned. What is in issue is the proceedings of the High Court. Therefore the question really is whether the Court should remit the appeal back to the High Court for re-hearing.
[5] The appellant was tried and convicted of raping the complainant having forcefully taken the complainant from her husband. The offence was allegedly committed on 15th May, 2011. The abortive appeal was determined on 11th November, 2013. In the circumstances, it is only fair and just that this matter be remitted back to the High Court for re-hearing of the appeal.
[6] Accordingly, the appeal is allowed, the judgment of the High Court dated 11th November, 2013 is set aside, and the appeal is remitted back to the High Court for re-hearing by a court constituted by a competent Judge of the High Court as provided under section 359 of the Criminal Procedure Code.
Dated and delivered at Eldoret this 14th day of February, 2018.
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.