Munene v Republic (Criminal Application 1 of 2014) [2014] KECA 213 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can appeal constitutional issues straight to the Supreme Court without asking permission 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 it is expedient or necessary for an applicant to seek certification under Article 163(4)(b) in respect of grounds which both parties concede involve interpretation or application of the Constitution under Article 163(4)(a)
- 2.Whether Sum Model Industries Ltd v ICDC requires a prospective appellant relying on Article 163(4)(a) to first obtain a certificate from the Court of Appeal
- 3.Whether the grounds on use of lethal force by a police officer in effecting an arrest raise matters of general public importance under Article 163(4)(b)
- 4.Whether the ground on treatment of evidence of witnesses of doubtful credibility raises a matter of general public importance
Key legal issues
#Necessity of certification where grounds already fall under Article 163(4)(a)
Where parties concede the grounds involve interpretation or application of the Constitution, an application for certification under Article 163(4)(b) is unnecessary; the applicant may appeal as of right under Article 163(4)(a) without any certificate.
Article 163(4)(a) gives an express constitutional right of appeal 'as of right' in cases involving interpretation or application of the Constitution. Imposing a certification filter would conflict with the clear text, introduce strictures on an unrestricted right of access, and subvert the overriding objectives of the Appellate Jurisdiction Act requiring expeditious and affordable disposal. The Constitution either deems such matters per se of general public importance or treats them as sui generis; in either case no certificate is needed.
Scope of Sum Model Industries practice direction
Sum Model Industries arose under Article 163(4)(b) and its direction to seek certification first in the Court of Appeal is restricted to Article 163(4)(b) applications; it never laid down a certification requirement for Article 163(4)(a) appeals.
The Supreme Court in Sum Model was dealing with an application for leave on grounds of general public importance and its good-practice direction reflected the concurrent jurisdiction of both courts on certification under Article 163(4)(b). Restricting that direction to its proper class preserves the unqualified constitutional right of appeal under Article 163(4)(a) and avoids introducing filters the Constitution never created.
Use of lethal force by police in effecting arrest
The grounds on use of force by a police officer during arrest raise no cardinal issue of law of jurisprudential moment because the law on reasonable force is clearly and comprehensively set out in the Criminal Procedure Code, the repealed Police Act and the National Police Service Act, and the courts below made concurrent findings of fact.
Sections 21 of the Criminal Procedure Code, 28 of the repealed Police Act and 61 of the National Police Service Act comprehensively regulate when an officer may use force, including lethal force. The trial court and the Court of Appeal concurrently found the deceased was unarmed and was shot three times at vital organs, ruling out justification. The applicant's complaint is thus an ordinary grievance about factual findings, not a matter transcending the case.
Evidence of witnesses of doubtful credibility
The ground on reliance on evidence of witnesses found to have lied raises no matter of general public importance since admissibility and weight of evidence are comprehensively provided for in the Evidence Act.
Questions of admissibility of evidence and the weight to be attached to it are governed by the Evidence Act. The applicant's complaint is that the concurrent factual findings of the High Court and the Court of Appeal were erroneous, which is a personal grievance with the outcome of litigation and falls short of the threshold for certification under Article 163(4)(b).
Legal principles established
#- An intended appeal to the Supreme Court on grounds involving interpretation or application of the Constitution under Article 163(4)(a) lies as of right and does not require prior certification or leave from the Court of Appeal.
- Sum Model Industries' requirement that certification be first sought in the Court of Appeal applies only to applications under Article 163(4)(b) on matters of general public importance, not to appeals as of right under Article 163(4)(a).
- Certification may not be used to convert concurrent findings of fact and the ordinary application of statutory law into matters of general public importance.
Court orders
#- 1.The Notice of Motion dated 15th May 2014 seeking a certificate under Article 163(4)(b) is dismissed
- 2.No orders on costs, the application arising from the exercise of the criminal jurisdiction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Criminal Appeal No. 314 of 2011
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - application for a certificate that an intended appeal to the Supreme Court raises matters of general public importance
Relief refused
#Certificate that the intended appeal to the Supreme Court raises matters of general public importance under Article 163(4)(b)
The applicant failed to discharge the burden of showing that the grounds transcend the particular case; the issues on use of force and credibility of witnesses are comprehensively covered by statute and are matters of concurrent findings of fact
Costs
As this application arises from the exercise of the criminal jurisdiction, we make no orders on costs.
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.
Accordingly the Notice of Motion dated 15th May 2014 fails and is hereby dismissed. As this application arises from the exercise of the criminal jurisdiction, we make no orders on costs.
The exercise of the right under Article 163(4)(a) is not dependent on first obtaining a certificate from this Court because the party appeals to the Supreme Court, “as of right”. The words “as of right” connote an appeal by virtue of legal or constitutional entitlement.
we are of the view that no amount of caution should ever justify or allow to take root in this Court a practice that is in direct conflict with the clear provisions of Article 163(4)(a) of the Constitution
it is for the applicant to identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for which certification is sought and that the burden lies upon such applicant to demonstrate that the matter in question carries specific elements of real public interest and concern
the law does not allow and has never allowed a police officer to use lethal force willy-nilly while effecting an arrest
Issues in the judgment
#The judgment refers to the application as arising from 'the judgment of the Court of Appeal at Nairobi (Nambuye, Maraga and Mohammed, JJ.A) dated 28th February 2014 in CA CR.A NO. 314 OF 2014' in the heading, but the body consistently identifies the appeal as Criminal Appeal No. 314 of 2011; the year in the heading appears to be an error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munene v Republic (Criminal Application 1 of 2014) [2014] KECA 213 (KLR)", Case Analysis (2014). Criminal Application No. 1 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/213/eng@2014-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.