[2019] KECA 1050 (KLR)
The Court of Appeal held that the appellant's first appeal in the High Court was heard by a bench that included a judge from the Employment and Labour Relations Court, contrary to the law as clarified by the Supreme Court in Republic vs Karisa Chengo and others. Such inclusion rendered the proceedings and judgment...
Source-derived case information.
- Citation
- [2019] KECA 1050 (KLR)
- Parties
- Appellant: Peter Maina Johnaliashussein Ali; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 37 of 2014
- Procedural Posture
- Criminal Appeal / Second Appeal Before the Court of Appeal
- Outcome
- Appeal allowed. High Court judgment and proceedings set aside. First appeal to be re-heard by a properly constituted High Court bench.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Composition of High Court Bench, Jurisdiction of Employment and Labour Relations Court, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Maina Johnaliashussein Ali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal Before the Court of Appeal
Legal Issues
- 1 Whether the inclusion of a judge from the Employment and Labour Relations Court in the High Court bench rendered the proceedings a nullity.
- 2 Whether the judgment and proceedings of the High Court should be set aside and the appeal re-heard.
Ratio Decidendi
The Court of Appeal held that the appellant's first appeal in the High Court was heard by a bench that included a judge from the Employment and Labour Relations Court, contrary to the law as clarified by the Supreme Court in Republic vs Karisa Chengo and others. Such inclusion rendered the proceedings and judgment of the High Court a nullity. Consequently, the Court of Appeal allowed the appeal, set aside the High Court's judgment and proceedings, and directed that the first appeal be re-heard by a properly constituted High Court bench comprised only of judges of the High Court.
Court Disposition
Appeal allowed. High Court judgment and proceedings set aside. First appeal to be re-heard by a properly constituted High Court bench.
Orders
- The appeal is allowed.
- The judgment and proceedings of the High Court are 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. 37 OF 2014
BETWEEN
PETER MAINA JOHNALIASHUSSEIN ALI...............................APPELLANT
AND
REPUBLIC.....................................................................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Kakamega (Chitembwe & Dulu, JJ.) dated 17th July, 2014
in
HCCRA NO. 309 OF 2012)
**********************
JUDGMENT OF THE COURT
It is common ground that the appellant’s appeal in the High Court that is subject of this second appeal before us, was heard by a Bench that included Wasilwa J, a judge in the Employment and Labour Relations Court. In accordance with the decision in Supreme Court Petition No. 5 of 2015 Republic vs Karisa Chengo and others, the proceedings in the High Court were a nullity.
Accordingly, we allow this appeal, set aside the judgment and proceedings of the High Court, and direct that the 1st appeal be re-heard by a High Court Bench properly constituted by judges of the High Court.
DATED at Kisumu this 28th 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.