[2018] KECA 652 (KLR)
The Court of Appeal held that the first appeal was heard and determined by a judge of the Environment and Land Court, who did not have jurisdiction to sit as a High Court judge in a criminal appeal. As a result, the proceedings and judgment of the High Court were a nullity. There was therefore no valid judgment...
Source-derived case information.
- Citation
- [2018] KECA 652 (KLR)
- Parties
- Appellant: Wycliffe Wanyonyi Nyongesa; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 85 of 2015
- Procedural Posture
- Criminal Appeal / Second Appeal Before the Court of Appeal
- Outcome
- High Court proceedings declared a nullity; matter remitted for rehearing before a competent High Court judge.
- Legal Topics
- Jurisdiction of Courts, Sexual Offences, Defilement, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliffe Wanyonyi Nyongesa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal Before the Court of Appeal
Legal Issues
- 1 Whether a judge of 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 the first appeal were a nullity due to lack of jurisdiction.
Ratio Decidendi
The Court of Appeal held that the first appeal was heard and determined by a judge of the Environment and Land Court, who did not have jurisdiction to sit as a High Court judge in a criminal appeal. As a result, the proceedings and judgment of the High Court were a nullity. There was therefore no valid judgment before the Court of Appeal upon which a second appeal could be based. The only proper course was to declare the High Court proceedings a nullity and remit the matter for rehearing before a competent judge of the High Court.
Court Disposition
High Court proceedings declared a nullity; matter remitted for rehearing before a competent High Court judge.
Orders
- The proceedings in the High Court are declared a nullity.
- The matter is remitted back to the High Court for the appellant’s first appeal to be reheard by a competent judge of the High Court.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: E. M. GITHINJI, HANNAH OKWENGU & J. MOHAMMED, JJ.A.)
CRIMINAL APPEAL NO. 85 OF 2015
BETWEEN
WYCLIFFE WANYONYI NYONGESA.............................APPELLANT
AND
REPULIC........................................................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Kitale,(Obaga, J.)dated 27th November, 2013
HCCRA NO. 132 OF 2011)
*****************
JUDGMENT OF THE COURT
[1] This is a second appeal by Wycliffe Wanyonyi Nyongesa (appellant),against his conviction and sentence for the offence of defilement of a girl contrary to section 8 (1)as read withsection 8 (3)of the Sexual Offences Act No. 3 of 2006. The appellant was convicted of the offence by the Senior Resident Magistrate’s court at Kitale, and sentenced to serve twenty (20) years imprisonment. His appeal against conviction and sentence was dismissed by the High Court (E. Obaga, J).
[2] The appellant being dissatisfied has lodged this second appeal. In his memorandum of appeal filed in person on 3rd December, 2013, seven (7) grounds of appeal were raised. The appeal was argued before us on 4th December, 2017. However, upon retiring to prepare our judgment, we have noted that the learned judge who heard the first appeal in the High Court is Mr. Justice E. Obaga who was appointed as a judge of the Environment and Land Court vide Gazette Notice No.14346 of 5th October, 2012.
[3]In the case of Republic vs Karissa Chengo & 2 Others [2017] eKLR, the Supreme Court upheld the holding of this Court that a judge of the Environment and Land Court was not appointed as a judge of the High Court and therefore had no jurisdiction to hear and determine a criminal appeal. Therefore, the hearing of the appellant’s appeal in the first appellate court by a judge of the Environment and Land Court, rendered the proceedings in the first appellate court a nullity. The result is that there is no proper judgment before us upon which a second appeal can be based.
[4] In the circumstances, we have no alternative but to declare the proceedings in the High Court a nullity and direct that this matter be remitted back to the High Court for the appellant’s first appeal to be reheard by a competent judge of the High Court.
Those shall be the orders of this Court.
DATED and delivered at Eldoret this 19th day of April, 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.