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Court of AppealDismissedCriminal Appeal No. 83 of 2016· [2017] eKLR

Erick Ingohi Luevo & Another v Republic

Court of Appeal
10 February 2017
AVAlnashir VisramWKW. KaranjaFAF. Azangalala
2,352 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 that the State must fund a lawyer for accused persons at trial, but not on appeal.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Visram, Karanja & Azangalala, JJ.A) dismissed a second appeal by Erick Ingohi Luevo and Moses Onyango Ongule, who had been convicted of four counts of robbery with violence and sentenced to death following a fatal armed robbery at a Westlands home in January 2010. Their convictions were affirmed by the High Court (Kimaru & Ngenye, JJ.) on 27th May 2015. The single ground of appeal was that the learned Judges erred in failing to observe that the appellants' constitutional rights to a fair hearing under Article 50(2)(g) and (h) were violated, in that the 2nd appellant was unrepresented at trial and both were unrepresented at the first appeal. The Court held that both appellants were in fact represented by counsel throughout the trial, so no violation arose at that stage. On the first appeal, the Court, following its decisions in David Njoroge Macharia and Isaiah Maroo, held that the right to State-funded legal representation under Article 50(2)(h) applies to 'every accused person' at trial and not to appeals; once convicted after a fair trial, the presumption of innocence is replaced by a presumption of legitimacy of conviction, and applying Article 50(2)(a)-(p) to appeals would lead to absurdity. The Court also noted that the Legal Aid Act, 2016, which commenced after the trial and first appeal, was inapplicable. The appeal was accordingly dismissed, with no order as to costs.

Key legal issues

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01

Scope of Article 50(2)(h) right to State-funded legal representation

Holding

The right attaches to trial, not to appeals; the Legal Aid Act 2016, which post-dated the trial and first appeal, was inapplicable.

Reasoning

The Court adopted its earlier reasoning in David Njoroge Macharia and Isaiah Maroo, holding that Article 50(2) safeguards are for 'every accused person' at trial; once convicted after a fair trial, the presumption of innocence gives way to a presumption of legitimacy of conviction, and the fair-trial rights cannot apply wholesale to an appeal without absurdity.

p. 4
02

Whether the appellants' trial rights were violated

Holding

No violation at trial; both appellants were represented by counsel from onset to conclusion of the trial.

Reasoning

The Court perused the record and found both appellants were represented at trial, so Article 50(2)(g) and (h) were satisfied at that stage.

p. 3

Legal principles established

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  • The fair trial rights in Article 50(2), including State-funded legal representation under Article 50(2)(h), apply to trial and not to appeals; a convicted person is not entitled to State-funded counsel on first appeal.
  • Persons accused of capital offences have the right to legal representation at State expense at trial.

Court orders

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  1. 1.The appeal has no merit and is hereby dismissed
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. A No. 55 & 59 of 2012
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court exercising original criminal appellate jurisdiction (Article 164(1)(a) 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, "Erick Ingohi Luevo & Another v Republic", Case Analysis (2017). Criminal Appeal No. 83 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/760/eng@2017-02-10

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