Republic (thro' Olum) v Shem Angungo & 5 others
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear appeals against refusals to extend time to appeal, even when the original hearing was unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an applicant must be present, and heard, on an application to the High Court in its appellate jurisdiction to extend time to appeal, and whether the court may revisit an application heard ex parte without fault on the applicant's part
- 2.Whether the Court of Appeal may entertain an appeal from a refusal by the High Court to admit an appeal out of time, given section 361(8) of the Criminal Procedure Code
- 3.Whether the Court of Appeal has a general supervisory jurisdiction over the High Court capable of being invoked to bypass a finality clause
- 4.Whether an order made in breach of natural justice is a nullity outside the reach of a finality clause
Key legal issues
#Whether the High Court's dismissal of the extension-of-time application, made without notice to the applicant, was valid
The dismissal was a nullity because the hearing date was not duly fixed on the applicant; the rule of natural justice audi alteram partem was infringed.
The letter notifying the applicant's advocate was wrongly addressed and could not have reached him, a fact of which the High Court was ignorant. The matter was therefore heard ex parte when it ought to have been inter partes. Orders made in such circumstances are ultra vires and null, and the High Court has inherent power, indeed a duty, to set them aside ex debito justitiae.
Whether the Court of Appeal could entertain the appeal notwithstanding section 361(8) of the Criminal Procedure Code
It could not. Appeal is a creature of statute; no right of appeal was conferred, and the refusal to extend time was expressly made final.
Section 64(1) of the Constitution and section 3(1) of the Appellate Jurisdiction Act confer only such appellate jurisdiction as statute grants. Ralph v Republic held that a refusal to extend time is not a decision on appeal; section 361(8)(b) expressly confirmed this. Ngua and Kariuki followed the same beaten track, and the court was bound to follow Kariuki, which was on all fours.
Whether the Court of Appeal has a general supervisory jurisdiction over the High Court
No. The High Court, being a superior court of record, is not amenable to supervision by prerogative writs; the only remedy against its orders is appeal, which must be granted by statute.
Following Anarita Njeru v Republic, the court held that it enjoys only such jurisdiction as is conferred by statute. Prerogative remedies evolved as the High Court's own machinery to control subordinate courts; they do not avail against the High Court itself. Parliamentary supremacy required obedience to the legislature's clearly expressed wish, however unpalatable the result.
The proper construction of finality (ouster) clauses
Finality clauses are construed strictly and do not protect null orders, but their application in Kenya has been inconsistent, and the point should be reconsidered by a full bench.
Relying on Anisminic, Pearlman and South East Asia Fire Bricks, the court accepted that finality formulae do not protect ultra vires decisions or decisions that are nullities for breach of natural justice. However, the practice of the Kenyan courts in construing finality clauses has not been uniform, and Platt JA recommended that the whole question be considered again by a bench of five judges.
Legal principles established
#- A right of appeal exists only where conferred by statute; it cannot be implied, and the Court of Appeal has no general supervisory jurisdiction over the High Court.
- The High Court has inherent jurisdiction to set aside ex parte orders where the party was not served with notice of the hearing; such an order is a nullity.
- Ex parte orders are always open to revision or reconsideration as a principle of natural justice.
- Finality clauses do not protect decisions made without jurisdiction or in breach of natural justice, but the Court of Appeal remained bound by Kariuki v Republic on refusals to extend time.
Court orders
#- 1.The appeal was dismissed (Platt JA, with Apaloo and Masime Ag JJ A agreeing in the result) as the court was bound by Kariuki v Republic; Masime JA would have struck it out as incompetent for want of jurisdiction
- 2.A direction was given under Rule 32(2) of the Court of Appeal Rules, the matter being of considerable importance
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Held the High Court dismissal was a nullity for breach of audi alteram partem, but that the court was bound by Kariuki v Republic on the finality of refusals to extend time, and reluctantly dismissed the appeal, recommending reconsideration by a full bench.
It follows that this court is at present bound to dismiss the appeal.p. 7
Wrote the judgment
Held that appeal is a creature of statute, that the Court of Appeal has no general supervisory jurisdiction over the High Court, and that the right of appeal was neither conferred nor statutorily barred in the appellant's favour; the appeal was incompetent.
Mr. Gumba Onywera was right in his contention that this Court has no jurisdiction to entertain this appeal.p. 13
Wrote the judgment
Agreed the appeal should be struck out for want of jurisdiction under section 361(8) of the Criminal Procedure Code, but added that ex parte orders are always open to revision or reconsideration as a principle of natural justice.
I consider that the party affected may usefully advert to the general principle that ex parte orders are always open to revision or reconsideration.
- On appeal from
- High Court at Kisumu
- Jurisdiction invoked
- Section 64(1) of the (former) Constitution and section 3(1) of the Appellate Jurisdiction Act; appeal purportedly under section 361(1) of the Criminal Procedure Code, barred by section 361(8)
Relief refused
#The appellant's appeal against the High Court's dismissal of his application for extension of time to appeal
The Court of Appeal has no jurisdiction to entertain an appeal from a refusal to extend time; section 361(8) of the Criminal Procedure Code makes such refusal final, and the court is bound by precedent
Costs
No costs order was made; Apaloo JA regretted that the court had no power to award costs against a failed private prosecutor.
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.
It follows that this court is at present bound to dismiss the appeal. As Apaloo JA agrees in the actual result and as Masime Ag JA also agrees, the appeal is dismissed.
As the matter is of considerable importance a direction was given under Rule 32(2) of the Court of Appeal Rules.
Indeed if the party has never been served with notice of the hearing, the default order is set aside ex debito justitiae.
There cannot be any difference in principle between an application to appeal out of time in a civil case and such an application in a criminal case, from the point of view of convening the court with notice to the parties.
I consider that the party affected may usefully advert to the general principle that ex parte orders are always open to revision or reconsideration.
The present situation is that the decision in Munene's case is as good as that in Anarita's case, and we wait a decision on the point by a bench of five judges.
Issues in the judgment
#Outcome described inconsistently: Platt JA dismisses the appeal while Masime JA would strike it out as incompetent.
The court decided the natural-justice point on facts neither established nor admitted, as Apaloo JA records.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic (thro' Olum) v Shem Angungo & 5 others", Case Analysis (1988). Criminal Appeal 168 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/144/eng@1988-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.