Gachanja & 7 others v Republic (Criminal Appeal (Application) 51 of 2004) [2007] KECA 491 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a preliminary objection cannot be used in a criminal appeal on disputed facts — the full appeal must be heard first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a preliminary objection can be raised in a criminal appeal by an appellant challenging the very judgment he is appealing against
- 2.Whether a preliminary objection can be sustained where the facts it relies on are disputed
- 3.Whether non-compliance with section 169(1) and (2) of the Criminal Procedure Code (unsigned judgment) can be determined before the full hearing of the appeal
Key legal issues
#Whether a preliminary objection lies in a criminal appeal
The court doubted whether a preliminary objection can be raised at all in a criminal appeal, particularly by an appellant against the judgment he is appealing from
The court found no authority supporting the jurisdiction of an appellate court in a criminal matter to entertain a preliminary objection raised by the appellant in his own appeal. If the alleged judgment is truly not a judgment, the appeal against it would itself be a nullity. The correct procedure is to plead the complaint as a ground of appeal and raise it first at the full hearing.
Whether a preliminary objection can be sustained on disputed facts
A preliminary objection cannot be raised where the facts it relies upon are in dispute; here the parties disputed whether the trial Judge signed the judgment
Applying the Mukisa Biscuits test, the court noted the record contained conflicting documents: an unsigned handwritten judgment, a signed typed original, and two conflicting copies of page 39. Resolving these conflicts requires the fresh evaluation of evidence and facts that is the duty of a first appellate court at the full hearing, not on a preliminary point.
Effect of non-compliance with section 169(1) and (2) of the Criminal Procedure Code
Where it is clearly undisputed that the judgment was not signed as required, the trial is vitiated; but the point could not be determined prematurely on this record
Section 169(1) requires every judgment to be dated and signed by the presiding officer in open court at the time of pronouncing it, and section 169(2) requires specification of the offence and sentence on conviction. The principle is settled, but its application depends on ascertaining the facts, which is reserved for the full appeal as a first appellate court re-evaluating the record.
Legal principles established
#- A preliminary objection must raise a pure point of law on undisputed facts and cannot lie where facts must be ascertained or discretion exercised
- Where the facts are clearly undisputed that the trial court did not comply with section 169(1) and (2) of the Criminal Procedure Code, the trial is vitiated
- Compliance with section 169 of the Criminal Procedure Code should be tested at the hearing of the full appeal, not by way of preliminary objection on disputed facts
- An appellant cannot file a preliminary objection against the very judgment he is appealing from; the correct course is to raise the complaint as a ground of appeal
Court orders
#- 1.The preliminary objection is rejected
- 2.The full appeal to proceed to hearing
- 3.Paginating of the record of appeal to be redone in running order from volume 1 to volume 3
- 4.Legible copies of pages 59, 60, 61 and 62 of volume 3 to be supplied
- 5.A complete English translation of the extra-judicial statement to be filed
- 6.The first appellant allowed to file a supplementary memorandum of appeal raising the issue of the unsigned judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Appellate jurisdiction over a criminal appeal from the High Court under the Criminal Procedure Code; no specific constitutional or statutory provision invoked in the ruling
Relief refused
#Declaration of mistrial and retrial de novo before another Judge
The objection was premature and raised on disputed facts; whether the judgment was signed must be determined at the full hearing of the appeal
Immediate release of the appellants from custody
Could only be considered if the conviction were quashed at the full hearing
Costs
No costs order made in the ruling
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 the result, the preliminary objection is rejected. We order the full appeal to proceed to hearing.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
We have no doubt in our mind that where the facts are clearly undisputed that the trial court has not complied with the provisions of section 169 (1) and (2) of the Criminal Procedure Code, the trial would be vitiated.
We cannot see how an appellant, whose appeal is against a judgment of the trial court can file an objection to the same judgment!
Lastly, we have not decided on the question of whether the judgment appealed from was dully signed by the trial court and the efiect of the same as we have felt the matter was raised prematurely and is in law not a preliminary point.
Issues in the judgment
#The ruling refers to itself in the text as a 'ruling' ('at the beginning of this ruling, we referred to what is before us as "what they referred to as a preliminary objection"') although it disposes of a preliminary objection within an appeal scheduled for full hearing
The text contains typographical errors ('ofience', 'efiect', 'fiow', 'paginating') and the reproduced quotation of section 169(1) omits the word 'officer' ('presiding oficer'), while the disposition paragraph states the question of the signed judgment was not decided despite the same paragraph directing rectification of the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachanja & 7 others v Republic (Criminal Appeal (Application) 51 of 2004) [2007] KECA 491 (KLR)", Case Analysis (2007). Criminal Appeal No 51 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/491/eng@2007-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.