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Court of AppealOtherMotion on Notice dated June 12, 1984· [1984] KECA 41 (KLR)

Oliver Munyaka Kabulu v Republic [1984] KECA 41 (KLR)

Court of Appeal of Kenya
30 July 1984
AKA.A KnellerAHA.R.W HancoxHPH.G Platt
1,029 words in judgment
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The bottom line

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Kenya's Court of Appeal couldn't decide whether court martial verdicts can be appealed twice, so it passed the question to a larger panel of five judges.

What this practically means

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Executive summary

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Oliver Munyaka Kabulu, a Kenya Air Force serviceman convicted by court martial of mutiny under section 85(2) of the Armed Forces Act (cap 199) and sentenced to eight years' imprisonment and dismissal, sought extension of time to apply for a certificate of appeal and file a second appeal after the High Court (Gicheru, J) dismissed his first appeal. His motion was brought under Rules 4 and 40(b) of the Court of Appeal Rules. The court (Kneller, Hancox and Platt, JJ.A) held that the certificate limb of the application was inappropriate, since an appeal either lies or it does not and no substantive provision requiring a certificate had been identified. The respondent raised a preliminary objection founded on Onyango, where this Court had held there was no second appeal from a court martial absent statutory provision. Counsel for the applicant, however, relied on Munene v The Republic (No.2) and National Telephone Co Ltd, authorities not cited in Onyango, supporting the view that a right of appeal exists unless forbidden by statute, as section 121 of the Armed Forces Act had done until replaced. Noting that Onyango was a unanimous decision of three judges while Munene was decided by a majority of two, the court declined to resolve the conflict itself. It referred the application to a full bench of five judges and adjourned it, holding it improper to decide until the existence of a right of second appeal from a court martial was settled by legislation or by a decision of the full court. The judgment is interlocutory in nature and does not disturb the decision below.

Key legal issues

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01

Whether a second appeal lies from a court martial to the Court of Appeal

Holding

The court declined to decide the point on the motion, noting two conflicting approaches: Onyango held there is no second appeal from a court martial absent statutory provision, while Munene and National Telephone suggest the opposite approach that a right of appeal exists unless forbidden by statute.

Reasoning

The bench was referred to Munene v The Republic (No.2) and National Telephone Co Ltd, authorities not cited in Onyango, which support a presumption of a right of appeal unless the relevant statute forbids it, as section 121 of the Armed Forces Act did until replaced. Because Onyango was a unanimous decision of three judges and Munene a majority of two, and the point goes to jurisdiction, the court chose to refer the matter to a full bench of five judges rather than resolve it itself.

p. 2
02

Inappropriateness of the application insofar as brought under Rule 40(b) for a certificate

Holding

The certificate limb of the application was inappropriate because counsel identified no substantive provision requiring such a certificate before an appeal to this Court.

Reasoning

Counsel relied on Rule 40(b) and referred to a certificate in his affidavit, but did not point to any substantive provisions requiring a certificate of a point of law of general public importance for the appeal to lie. The court held that an appeal either lies or does not, so the certificate part of the application was misconceived.

p. 2

Legal principles established

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  • Where no appeal lies unless a superior court certifies that a point of law of general public importance is involved, the application for the certificate may be made informally at the time of the decision or by motion or chamber summons within fourteen days.
  • An appeal either lies or it does not lie; a certificate is not a device that can create a right of appeal where none exists.
  • Rule 41 requires applications to be made in the first instance to the superior court, though in criminal matters this Court may in its discretion give leave or extend time notwithstanding that no application was made to the superior court.

Court orders

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  1. 1.The application is adjourned for the jurisdictional issue to be resolved either by legislation or by a decision of a full court of five judges
  2. 2.The application is referred to a full bench of 5 judges
On appeal from
High Court of Kenya
Criminal Appeal heard by Mr Justice Gicheru
Jurisdiction invoked
Rules 4, 40(b) and 41 of the Court of Appeal Rules, in relation to an intended second appeal from a court martial under the Armed Forces Act (cap 199)

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, "Oliver Munyaka Kabulu v Republic [1984] KECA 41 (KLR)", Case Analysis (1984). Motion on Notice dated June 12, 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/41/eng@1984-07-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.