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Court of AppealPartially AllowedCriminal Appeal No. 3 of 2013

Peter Mwangi Waithaka v Republic [2013] KECA 264 (KLR)

Court of Appeal
20 September 2013
JMJ. W. MweraDMD. K. MusingaSKS. Gatembu Kairu
1,308 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a High Court criminal appeal judgment signed by only one judge and undated is invalid, and ordered the appeal reheard.

What this practically means

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Executive summary

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The Court of Appeal (Mwera, Musinga and Gatembu, JJ.A) allowed the appellant's second appeal in relation to process, without deciding the merits. The appellant had been convicted of robbery with violence contrary to section 296(2) of the Penal Code by a Senior Principal Magistrate and sentenced to death. His first appeal to the High Court was heard by Khaminwa and Warsame, JJ, but the judgment placed before the Court of Appeal was undated and signed by Khaminwa, J alone, and the judgment signed by both judges could not be traced on either file. The Court held that under sections 169(1) and 359(1) of the Criminal Procedure Code, a judgment must be dated and signed by the presiding officer(s) in open court, and appeals from subordinate courts to the High Court must be heard by two judges unless the Chief Justice gives written authority for a single judge. Both requirements are mandatory. An undated judgment signed by only one of two judges could not stand. The Court distinguished retrial authorities founded on tampering with the trial record and declined to order a retrial, since the defect concerned the appellate judgment only. Instead it remitted the matter to the High Court for a rehearing of the appeal and a fresh judgment, to be arranged without delay, balancing the appellant's right to be heard afresh (with a further right of appeal) against the public interest, and noted it need not address time spent in custody. No costs order was made.

Questions the Court framed

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

  1. 1.Whether a judgment of the High Court, delivered undated and signed by only one of the two judges who heard the first appeal, is valid
  2. 2.Whether the High Court first appeal was required to be heard by two judges under section 359(1) of the Criminal Procedure Code
  3. 3.Whether the matter should be treated as a nullity, or a retrial ordered, or the appeal remitted for rehearing

Key legal issues

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01

Validity of an undated judgment signed by only one of two judges

Holding

A judgment of the High Court on a first appeal heard by two judges must be dated and signed by both judges; a judgment signed by one judge and undated is defective and cannot stand

Reasoning

Sections 169(1) and 359(1) of the Criminal Procedure Code use mandatory language: judgments shall be dated and signed by the presiding officer(s) in open court, and appeals from subordinate courts shall be heard by two judges absent written authority from the Chief Justice for a single judge. The judgment before the court was signed by Khaminwa, J alone and undated, despite both judges having heard the appeal, so it could not stand.

p. 2
02

Whether the proper remedy was a retrial or a rehearing of the first appeal

Holding

The appropriate remedy was a remission to the High Court for a rehearing of the appeal, not a retrial, since the defect concerned the appellate judgment and not the trial record

Reasoning

The court distinguished retrial cases based on tampering with the trial record. Here the problem was the missing signed two-judge first appellate judgment. Rehearing the appeal balances the interests of justice: the appellant is heard afresh and may appeal again if dismissed, while the prosecution need not worry about witness availability since no retrial is ordered.

p. 3

Legal principles established

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  • A judgment must be dated and signed by the presiding officer(s) in open court at the time of pronouncing it; the requirement is mandatory
  • Appeals from subordinate courts to the High Court must be heard by two judges unless the Chief Justice gives written authority for a single judge, and both judges must sign and date the judgment
  • A first appeal heard by two judges must culminate in a judgment signed and dated by both judges

Court orders

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  1. 1.The matter is remitted to the High Court for rehearing of the appeal and rendering of a fresh judgment
  2. 2.Arrangements to be made for the rehearing of the appeal without delay

The bench

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

JM
majority

Wrote the judgment

DM
majority
SK
majority
On appeal from
High Court of Kenya at Nairobi
HC.CR.A. No. 171 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (criminal appeal against a decision of the High Court acting as first appellate court)

Relief refused

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Order for retrial of the criminal case

The defect related to the missing two-judge first appellate judgment, not to the trial court's record or trial, so a retrial was not warranted; the remedy was rehearing of the first appeal

p. 3

Costs

No costs order 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.

The requirement to date and sign a judgment is couched in mandatory terms using the word "shall." Thus omitting to comply must have serious consequences.
p. 2Mandatory requirement to date and sign judgments
It is a mandatory requirement that appeals from the lower courts to the High Court be heard by two judges unless the Chief Justice has given written authority that a single judge shall entertain such appeal.
p. 2Composition of first appeals in the High Court
to ensure that justice is done, we direct that the matter be remitted to the High Court for rehearing the appeal, followed by rendering a judgment.
p. 3Final orders - remittal for rehearing
And so we order. Arrangements to be made for the rehearing of the appeal without delay.
p. 3Final orders - rehearing without delay

Issues in the judgment

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material

The judgment of the first appellate court under review was undated and signed by only one of the two judges who heard the appeal; the record also indicates it was delivered by Ochieng, J rather than the hearing judges

minor

No costs order is recorded in the judgment despite the court making final orders

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, "Peter Mwangi Waithaka v Republic [2013] KECA 264 (KLR)", Case Analysis (2013). Criminal Appeal No. 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/264/eng@2013-09-20

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