Republic v Nuseiba Mohammed Haji Osman alias Umm Fidaa, alias Ummu Fidaa, alias Ummulxarb [2016] KECA 287 (KLR)
The bottom line
#Kenya's Court of Appeal struck out the DPP's attempt to cancel a terrorism suspect's bail because the prosecutor first needed the court's permission to appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the DPP requires leave to appeal against an order of the High Court declining to revise an order of the subordinate court granting bail
- 2.Whether the Court has jurisdiction to entertain the application under rule 5(2)(a) of the Court of Appeal Rules
- 3.Whether the Court's inherent jurisdiction or Article 159(2)(d) could cure the want of leave
- 4.Whether a negative order of the High Court declining to exercise revisionary jurisdiction can be stayed
Key legal issues
#Right of appeal against a High Court refusal to revise a bail order
Such an appeal is not as of right; where the High Court exercises appellate/revisionary jurisdiction over a bail order in the statutes listed in section 379A of the Criminal Procedure Code, the DPP must first obtain leave.
The Court analysed section 361 and section 379A of the Criminal Procedure Code. Section 379A grants the DPP a direct right of appeal only where the High Court in its original jurisdiction grants bail; by implication, where the High Court acts in its appellate/revisionary capacity, leave is required. The respondent faces offences under the Prevention of Terrorism Act, a listed statute, and no leave was sought or obtained.
Whether rule 5(2)(a) of the Court of Appeal Rules provides jurisdiction
Rule 5(2)(a) does not assist the DPP because it addresses release on bail pending appeal and suspension of warrants of distress, not cancellation of bail granted below.
The Court read rule 5(2)(a) with rule 59 and relied on Jayendra Khimiji Malde v R and Ademba v Republic, which confined the sub-rule to convicted persons seeking bail pending appeal. The present application sought the opposite - cancellation of bond already granted - so the sub-rule is of no assistance.
Whether inherent jurisdiction or Article 159(2)(d) could save the application
No. Inherent jurisdiction cannot override a statutory condition precedent to jurisdiction.
Relying on Manilal Jamnandas Ramji Golli v DPP, Feisal Mohammed Ali v R and the Supreme Court's decision in Bwana Mohammed Bwana v Silvano Boru Bonaya (which approved the Nigerian decision in Ocheja Emmanuel Dangana), the Court held that where leave is a condition precedent fixed by statute, an appeal cannot come before the Court until leave is given, and substantive justice arguments cannot cure the want of jurisdiction.
Legal principles established
#- Where the High Court, in exercise of its appellate (revisionary) jurisdiction, declines to revise an order of a subordinate court granting bail in proceedings under the statutes listed in section 379A of the Criminal Procedure Code, an appeal by the DPP lies only with leave, which is a condition precedent to the exercise of the Court of Appeal's jurisdiction.
- An incompetent appeal divests a court of jurisdiction, and a court cannot exercise its adjudicatory powers where a condition precedent to jurisdiction has not been fulfilled.
- Rule 5(2)(a) of the Court of Appeal Rules permits bail pending appeal only to a person seeking release after conviction; it does not authorise cancellation of bail or bond granted by the courts below.
- A negative order of the High Court, such as a refusal to exercise revisionary jurisdiction, is not capable of being stayed.
- Inherent jurisdiction cannot be invoked to cure failure to comply with a statutory condition precedent to the exercise of jurisdiction.
Court orders
#- 1.The DPP's Notice of Motion dated 15th July 2016 was struck out
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Cr. Revision No. 232 of 2016
- Jurisdiction invoked
- Articles 164(3) of the Constitution, section 3 of the Appellate Jurisdiction Act and rule 5(2)(a) of the Court of Appeal Rules, invoked on a notice of appeal
Relief refused
#Setting aside and/or staying the High Court ruling declining to revise the subordinate court's order granting the respondent bail
The intended appeal was incompetent because leave, a condition precedent under the applicable statutory scheme, had not been sought or obtained
Stay of the High Court order pending the intended appeal
The High Court issued a negative order incapable of being stayed, and rule 5(2)(a) affords no basis for cancelling bail granted by the courts below
Costs
No costs order was 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 end we have come to the conclusion that this application is incompetent as a condition precedent to our exercise of jurisdiction was not complied with.
We cannot entertain the Notice of Motion. Accordingly, we order that it be and is hereby struck out.
an appeal against such an order would only lie with the leave of the court if the proceedings in which the order challenged are proceedings under sections 203 or 296 (2) of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic substances, (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act and the Counter-Trafficking in Persons Act.
The sub-rule says nothing about seeking cancellation of bond or bail granted by the court or courts below. Obviously, therefore, the sub-rule is of no assistance to the applicant.
Issues in the judgment
#Paragraph numbering is defective in the judgment: the number [33] is used twice and the number [34] is missing, so the sequence runs [32], [33], [33], [35].
The date of the hearing is recorded as 26th February, 2016, which precedes the High Court ruling of 11th July 2016 that the application challenges, an apparent internal chronological inconsistency.
The description of the High Court decision is internally inconsistent: the motion recites delivery of the decision 'on the 11th day of July, 2016' while the heading describes it as dated 11th May, 2016.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Nuseiba Mohammed Haji Osman alias Umm Fidaa, alias Ummu Fidaa, alias Ummulxarb [2016] KECA 287 (KLR)", Case Analysis (2016). Criminal Application No. Nai. 4 of 2016 (UR 4/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/287/eng@2016-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.