[2006] KECA 134 (KLR)
The Court of Appeal held that the High Court erred in finding that the Resident Magistrate lacked jurisdiction to try the offence under section 234 of the Penal Code. Section 2 of the Magistrates’ Courts Act clearly defines a Resident Magistrate’s Court as a court of the First Class, thereby conferring jurisdiction...
Source-derived case information.
- Citation
- [2006] KECA 134 (KLR)
- Parties
- Appellant: Republic; Respondent: Shande Ali; Respondent: Abdi Nane; Respondent: Adan Mamo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 55 of 2004
- Procedural Posture
- Criminal Appeal / Second Appeal
- Outcome
- appeal allowed
- Judges
- JE Gicheru
- Legal Topics
- Jurisdiction of Magistrates, Criminal Appeals, Quashing of Conviction, Retrial Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Appellant
Shande Ali
Respondent
Abdi Nane
Respondent
Adan Mamo
Respondent
Procedural Posture
Criminal Appeal / Second Appeal
Legal Issues
- 1 Whether a Resident Magistrate had jurisdiction to try an offence under section 234 of the Penal Code.
- 2 Whether the first appellate court erred in quashing the conviction and ordering a retrial based on lack of jurisdiction.
Ratio Decidendi
The Court of Appeal held that the High Court erred in finding that the Resident Magistrate lacked jurisdiction to try the offence under section 234 of the Penal Code. Section 2 of the Magistrates’ Courts Act clearly defines a Resident Magistrate’s Court as a court of the First Class, thereby conferring jurisdiction to try such offences. The trial, conviction, and sentence by the Resident Magistrate were therefore valid. The appellate court’s orders quashing the conviction and sentence and ordering a retrial were set aside, and the original conviction and sentence were reinstated, subject to the balance outstanding after accounting for the period affected by the High Court’s orders.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The orders of the first appellate court quashing the respondents’ convictions and sentences and ordering a retrial are set aside.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL OF KENYA AT NYERI
Criminal Appeal 55 of 2004
REPUBLIC …………………………………...........................................………………………….. APPELLANT
AND
1. SHANDE ALI
2. ABDI NANE
3. ADAN MAMO………................................................……………………………..……….. RESPONDENTS
(Appeal from a judgment of the High Court of Kenya at Nyeri (Ombija, J) dated 21st January, 2004
in
H.C. Cr. Appeal Nos. 171, 172 & 173 of 2002 (Consolidated))
***************************************
JUDGMENT OF THE COURT:
In this second appeal, the appellant’s single ground of appeal is that the first appellate judge erred in law in holding that the trial magistrate had no jurisdiction to hear the criminal case against the respondents.
The respondents had been arraigned before a court presided over by a Resident Magistrate at Moyale for the offence of doing grievous harm contrary to section 234 of the Penal Code. They were tried, convicted and each sentenced to 5 years imprisonment. They appealed to the High Court of Kenya sitting at Nyeri against conviction and sentence. In their respective supplementary petition of appeal, they each averred:
“THAT the learned trial magistrate erred in law by taking up and purporting to adjudicate upon the subject of the offence brought against the Appellant under section 234 (of the) Penal Code being an offence triable only by a subordinate Court of the First Class and the said Magistrate by designation then being a Resident Magistrate. (First Schedule – Division IV of the Crim. Procedure Code).”
‘The learned Magistrate’s trial and the resultant conviction and sentence being without proper jurisdiction was/is thus null and void “ab initio”’.
They each submitted on these two grounds of appeal through their counsel and the first appellate court acceded to their submissions and held that the respondents’ trial was null and void as the trial magistrate being a Resident Magistrate had no jurisdiction as he was not a First Class Magistrate according to the Schedule referred to above. In the result, the respondents’ first appeal was allowed, their respective conviction quashed and their sentence set aside. The first appellate court then ordered a retrial. It is against that holding and the order for a retrial that the appellant now appeals to this Court.
Under section 2 of the Magistrates’ Courts Act, Chapter 10 of the Laws of Kenya a Resident Magistrate’s Court is a court of the First Class. In the instant appeal therefore, the Resident Magistrate who presided over the trial of the respondents at Moyale for the offence of doing grievous harm contrary to section 234 of the Penal Code had jurisdiction. Consequently therefore, we allow this appeal, set aside the orders of the first appellate court quashing the respondents’ respective conviction, setting aside their respective sentences and for their retrial before the Nyeri Principal Magistrate and reinstate their conviction and sentence by the trial magistrate which sentence shall be the balance outstanding consequent to actualizing the orders of the first appellate court.
Dated and delivered at Nyeri this 4th day of August, 2006.
J.E. GICHERU
………………………
CHIEF JUSTICE
S.E.O. BOSIRE
………………………….
JUDGE OF APPEAL
W.S. DEVERELL
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR