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Court of AppealDismissedCriminal Appeal No. 382 of 2009· [2010] KECA 156 (KLR)

Elizabeth Waithera Mary & another v Republic [2010] KECA 156 (KLR)

Court of Appeal
2 July 2010
Philip Kiptoo TunoiP.K. TunoiDAD.K.S. AganyanyaJNJ.G. Nyamu
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a mid-trial ruling in a criminal case unless there is a conviction.

What this practically means

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Executive summary

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The appellants, charged in the High Court at Nairobi with the murder of Alexander Kungu Wangui, appealed to the Court of Appeal against a ruling of Ochieng, J. dated 30th June 2009 dismissing their preliminary objection. They contended that their constitutional rights under sections 72(3)(b) and 77 of the Constitution were violated because they were held in police custody for two months and fifteen days before being brought to court, and that this admitted delay entitled them to automatic acquittal even at the interlocutory stage. The court observed that although a fundamental-rights contravention was substantively alleged, the appellants had not moved the superior court by petition under section 84(1) of the Constitution and the Gicheru Rules, but had instead raised the point in the course of the criminal proceedings, and did so nearly a year after being put on their defence. The Court of Appeal held that under section 379(1) of the Criminal Procedure Code, appeals to it arise only from convictions and sentences; since there was no conviction, no appeal lay. The court reiterated that it does not entertain preliminary applications in criminal cases except in very exceptional situations, and that the proper course was either to raise the preliminary point timeously and await the trial outcome, or to file a petition under section 84(1), from which an appeal would lie as of right under section 84(7). The constitutional procedure not having been followed, the appeal was dismissed in its entirety. The binding proposition for lower courts is that interlocutory rulings in ongoing criminal trials are not appealable to the Court of Appeal absent a conviction, and constitutional contraventions must be pursued by petition. No order as to costs appears in the judgment.

Key legal issues

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01

Whether an appeal lies to the Court of Appeal against an interlocutory ruling in an ongoing criminal trial

Holding

No appeal lies; appeals to the Court of Appeal arise only from convictions under section 379(1) of the Criminal Procedure Code.

Reasoning

The court reasoned that section 379(1) confines appeals to persons convicted by the High Court and sentenced to death, imprisonment exceeding twelve months, or a fine exceeding Kshs.2,000. Since the appellants' trial was still pending and no conviction had been entered, the ruling on the preliminary point was interlocutory and not appealable. The appellants should have awaited the outcome of the trial before appealing.

p. 2
02

Whether the alleged constitutional contravention could be pursued without a petition under section 84(1)

Holding

The proper procedure was a petition under section 84(1) of the Constitution and the Rules made thereunder, with an appeal lying to the Court of Appeal under section 84(7) after determination.

Reasoning

Although a fundamental-rights contravention was substantively alleged, the appellants did not move the superior court by petition as required by section 84(1) of the Constitution and the Gicheru Rules, but instead raised a preliminary point in the course of the criminal proceedings. The court held that the constitutional procedure not having been followed, no right of appeal to this Court arose under section 84(7).

p. 2

Legal principles established

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  • Appeals to the Court of Appeal in criminal matters arise only from convictions and sentences as prescribed by section 379(1) of the Criminal Procedure Code; interlocutory rulings in an ongoing trial are not appealable.
  • The Court of Appeal does not entertain preliminary applications in criminal cases except in very exceptional situations.
  • An accused alleging contravention of constitutional rights during trial must either raise the point at the earliest opportunity and await the trial outcome, or move the court by a petition under section 84(1) of the Constitution, from which an appeal lies under section 84(7).

Court orders

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  1. 1.The appeal is dismissed for want of jurisdiction, no appeal lying to the Court of Appeal in the absence of a conviction
On appeal from
High Court of Kenya at Nairobi
H.C. CR.C. No. 68 of 2004
Jurisdiction invoked
Section 379(1) of the Criminal Procedure Code; sections 72(3)(b), 77, 84(1), 84(6) and 84(7) of the Constitution

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, "Elizabeth Waithera Mary & another v Republic [2010] KECA 156 (KLR)", Case Analysis (2010). Criminal Appeal No. 382 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/156/eng@2010-07-02

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