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Court of AppealAllowedCriminal Appeal No. 9 of 2016

Francis Irungu Muthoni v Republic [2017] KECA 279 (KLR)

Court of Appeal
29 September 2017
PWP. N. WakiASAsike-MakhandiaWilliam OukoW. Ouko
773 words in judgment
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The bottom line

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Kenya's Court of Appeal voided a criminal appeal decision because one judge came from the wrong court, confirming specialized judges cannot hear High Court matters.

What this practically means

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Executive summary

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In this second appeal, the Court of Appeal (Waki, Makhandia and Ouko, JJ.A) considered whether the appellant's first appeal in H.C.CR.A. No. 705 of 2010, in which he had been convicted by the Limuru Senior Principal Magistrate's Court of robbery with violence and handling stolen property and sentenced to death, was validly determined. The High Court judgment of 17th June 2014 had been rendered by two Judges: R. Lagat-Korir, a High Court Judge, and D. K. Njagi Marete, a serving Judge of the Employment and Labour Relations Court. Applying the Supreme Court's decision in Republic v Karisa Chengo & 2 others [2017] eKLR, which held that Judges of the specialized courts of Environment and Land and Employment and Labour Relations have no jurisdiction over matters reserved for the High Court and vice versa, the Court held that Marete J's empanelment was unlawful and unconstitutional. Only one Judge had therefore validly sat on the appeal under Section 359 of the Criminal Procedure Code. The Court declared the High Court decision null and void and remitted the appeal to the High Court in Nairobi for expeditious rehearing before any lawfully empanelled Judges, expressly excluding Lagat-Korir and Marete JJ. The appeal succeeded on this jurisdictional ground; the underlying conviction and sentence were not determined on the merits and will fall for consideration afresh on rehearing.

Questions the Court framed

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

  1. 1.Whether the first appeal from the subordinate court was lawfully determined when one of the two Judges empanelled was a Judge of the ELRC rather than the High Court
  2. 2.What is the consequence of an unlawful empanelment of a Judge without jurisdiction over the criminal appeal

Key legal issues

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Jurisdiction of specialized-court Judges over High Court matters

Holding

The High Court and the specialized courts (ELC and ELRC) are different courts of equal status, and a Judge appointed to one may not exercise the jurisdiction of another.

Reasoning

Relying on the Supreme Court's decision in Republic v Karisa Chengo, the Court reasoned that the statutes creating the specialized courts confine their jurisdiction to matters provided for in those statutes, an inference reinforced by Article 165(5) of the Constitution. Marete J, though an ELRC Judge, sat on a criminal appeal reserved for the High Court; his empanelment was therefore void.

p. 1
02

Consequence of unlawful empanelment

Holding

The High Court decision of 17th June 2014 was declared null and void and the appeal remitted for rehearing before lawfully empanelled Judges, excluding the two who decided it.

Reasoning

Since only Lagat-Korir J was a validly appointed High Court Judge, the appeal under Section 359 of the Criminal Procedure Code was determined by an improperly constituted bench. The defect went to jurisdiction and could not be cured; the only remedy was nullification and a rehearing de novo by a lawfully empanelled bench, excluding the original Judges.

p. 2

Legal principles established

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  • A Judge of the specialized courts of Environment & Land and Employment & Labour Relations has no jurisdiction to hear and determine matters reserved for the High Court and vice versa.
  • Criminal appeals from subordinate courts must be heard by Judges of the High Court properly empanelled; empanelment of a specialized-court Judge on such an appeal is unlawful and unconstitutional and renders the decision null and void.

Court orders

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  1. 1.Declaration that the decision made on 17th June, 2014 is null and void
  2. 2.Remittal of the matter to the High Court in Nairobi for expeditious rehearing and determination of the appeal by any Judges lawfully empanelled to do so, excepting R. Lagat-Korir and D. K. Njagi Marete

The bench

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

PW
majority

Wrote the judgment

AS
majority

Wrote the judgment

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 705 of 2010
Jurisdiction invoked
Second appellate jurisdiction of the Court of Appeal under the Criminal Procedure Code, engaging Section 359(1) as construed with Article 165 of the Constitution per Republic v Karisa Chengo & 2 others

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 empanelment of Justice D. K. Njagi Marete to sit and determine the criminal appeal in question, was unlawful and unconstitutional.
p. 2Unlawful empanelment of specialized-court Judge
On that finding, we declare the decision made on 17th June, 2014 as null and void.
p. 2Final orders - nullification
We order that the matter be and is hereby remitted to the High Court in Nairobi for expeditious rehearing and determination of the appeal in accordance with the law by any Judges lawfully empanelled to do so, excepting R. LAGAT - KORIR and D. K. NJAGI MARETE.
p. 2Final orders - remittal for rehearing

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, "Francis Irungu Muthoni v Republic [2017] KECA 279 (KLR)", Case Analysis (2017). Criminal Appeal No. 9 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/279/eng@2017-09-29

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