Onyango v Republic [1983] KECA 27 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it has no power to hear second appeals from court martial convictions; appeals from military courts stop at the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to hear a second appeal from a court martial via the High Court
- 2.Whether the repeal of section 121 of the Armed Forces Act by the Armed Forces (Amendment) Act 1978 was intended to introduce a right of second appeal to the Court of Appeal
Key legal issues
#Whether section 130 of the Armed Forces Act, read with section 361 of the Criminal Procedure Code, confers a right of second appeal to the Court of Appeal
No. Section 130 applies only the procedural provisions of Part XI of the Code to the conduct of the first appeal from a court martial to the High Court; it does not create a right of second appeal.
The court held that section 130's purpose is to import the Code's procedural provisions governing appeals from subordinate courts to the hearing and determination of appeals under Part IX of the Armed Forces Act, so far as they do not conflict with that Act's own Part IX procedures. Express provision for appeals exists only for appeals from courts martial to the High Court; Part IX contains no reference to the Court of Appeal, and the Court Martial Appeals Rules likewise make no reference to it.
Whether the 1978 repeal of section 121 of the Armed Forces Act evinced a legislative intention to permit a second appeal
No. The repeal cannot be construed as creating a right of appeal, and no such right had ever existed; the 1978 Act appears to have been a general revision.
The court noted there was no indication in the 1978 amendment Act of the purpose of the repeal, which contained many amendments amounting to a general revision after ten years of operation. Construing the repeal as introducing a second appeal would require section 130 to have a different meaning in the absence of section 121, which the court rejected. Parliament would have made its intention plain had it intended such a significant change, including procedural provisions for second appeals.
The nature of the Court of Appeal's jurisdiction
The court's jurisdiction, like that of the Court of Appeal for East Africa, is derived from statute; it has no inherent jurisdiction.
Both the Attorney General and the court agreed that the jurisdiction is statutory, resting on the Constitution section 64(1) and section 3(1) of the Appellate Jurisdiction Act, supported by prior East African and Kenyan authority. Because no statute conferred a right of second appeal from courts martial, the appeal was incompetent and the court could not entertain it.
Legal principles established
#- A right of appeal to the Court of Appeal cannot be inferred from the mere repeal of a provision barring appeals, absent any prior statutory right of appeal; Parliament must make such an intention plain.
- There is no statutory provision for a second appeal from a court martial to the Court of Appeal.
- The Court of Appeal's jurisdiction is derived solely from statute and it has no inherent jurisdiction.
Court orders
#- 1.Appeal dismissed as incompetent for want of jurisdiction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Jurisdiction was the very question for determination; the court held it had none. Counsel relied on section 130 of the Armed Forces Act (cap 199) and section 361 of the Criminal Procedure Code (cap 75); the court noted the Constitution section 64(1) and the Appellate Jurisdiction Act (cap 9) section 3(1) as the statutory sources of appellate jurisdiction.
Relief refused
#Second appeal against conviction on the count of disobedience to standing orders
The court held it lacked jurisdiction to entertain a second appeal from a court martial; no decision was made on the Attorney General's submission that the appeal raised no matter of law.
Costs
No costs order was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our considered view there is no statutory provision for a second appeal from a court martial to the Court of Appeal, and accordingly we dismiss this appeal as incompetent for want of jurisdiction on our part to entertain it.
In the absence of any prior statutory provision conferring a right of appeal, a right of appeal to the Court of Appeal cannot be inferred from the repeal of a provision to the effect that no appeal shall lie from the High Court.
the jurisdiction of this court, like that of its predecessor, the Court of Appeal for East Africa, is derived from statute, and the court has no inherent jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Republic [1983] KECA 27 (KLR)", Case Analysis (1983). Court Martial appeal - second appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/27/eng@1983-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.