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Court of AppealOtherCourt Martial appeal - second appeal (number not stated in judgment)

Onyango v Republic [1983] KECA 27 (KLR)

Court of Appeal
5 May 1983
1,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant was convicted by Court Martial in December 1981 on two counts of stealing public property under section 38(a) of the Armed Forces Act and a third count of disobedience to standing orders under section 30(1). His first appeal to the High Court succeeded on the theft counts but failed on the third count, and he sought a second appeal to the Court of Appeal. The Attorney General, appearing for the Republic, raised as a preliminary point whether the court had jurisdiction to hear a second appeal from a court martial, submitting that jurisdiction arose from section 130 of the Armed Forces Act read with section 361 of the Criminal Procedure Code. The court agreed with counsel that its jurisdiction, like that of its predecessor, the Court of Appeal for East Africa, is purely statutory with no inherent jurisdiction. It held that section 130 merely applies the procedural provisions of Part XI of the Criminal Procedure Code to the hearing and determination of the first appeal from a court martial to the High Court, and does not create a right of second appeal. The court rejected the argument that the 1978 repeal of section 121 of the Armed Forces Act, which had declared High Court determinations final, was intended to introduce a second appeal, noting the 1978 amendment Act appeared to be a general revision with no stated purpose for the repeal. Holding that a right of appeal cannot be inferred from such a repeal, the court dismissed the appeal as incompetent for want of jurisdiction and made no decision on whether the appeal raised a matter of law. This establishes the binding proposition that no statutory second appeal lies from a court martial to the Court of Appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to hear a second appeal from a court martial via the High Court
  2. 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

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01

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

Holding

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.

Reasoning

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.

p. 2
02

Whether the 1978 repeal of section 121 of the Armed Forces Act evinced a legislative intention to permit a second appeal

Holding

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.

Reasoning

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.

p. 2
03

The nature of the Court of Appeal's jurisdiction

Holding

The court's jurisdiction, like that of the Court of Appeal for East Africa, is derived from statute; it has no inherent jurisdiction.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.Appeal dismissed as incompetent for want of jurisdiction

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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.

p. 3

Costs

No costs order was made in the judgment.

Quotable passages

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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.
p. 2Final orders - dismissal for want of jurisdiction
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.
p. 2Appellate jurisdiction cannot be inferred from statutory repeal
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
p. 1Statutory basis of appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.