Emmanuel Ejore v Republic [2019] KECA 454 (KLR)

Court of Appeal of Kenya

25 July 2019

EGE. M. Githinji HOH. M. Okwengu JMJ. Mohammed

447 words in judgment

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The bottom line

Kenya's Court of Appeal voided a criminal appeal decided by a land-court judge, ruling his judgment never legally existed and ordering a fresh hearing.

What this practically means

Executive summary

This was a second appeal against conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, for which the appellant had been sentenced to 20 years imprisonment by the Senior Principal Magistrate's Court at Webuye. His first appeal to the High Court at Bungoma was dismissed in its entirety by Mutungi J on 13th November 2013. The Court of Appeal did not address the merits of the conviction. Instead, relying on the Supreme Court's decision in Republic v Karisa Chengo, it held that Mutungi J, having been appointed a Judge of the Environment and Land Court, had no jurisdiction to hear a criminal appeal, and that the first appeal proceedings and judgment were therefore a nullity. Since the second appeal was anchored on a judgment that did not exist in law, the court set aside the High Court proceedings and judgment and ordered that the appellant's first appeal be placed before the High Court for hearing and disposal by a judge with appropriate jurisdiction. The judgment binds lower courts to the rule that criminal appeals heard by Environment and Land Court judges are void, and that the remedy is a remittal for a fresh hearing rather than a determination on the merits. No costs order was made.

Key legal issues

Whether the first appellate court had jurisdiction to hear the appellant's criminal appeal

Holding

Mutungi J, having been appointed a Judge of the Environment and Land Court, lacked jurisdiction to hear the criminal appeal; his proceedings and judgment were a nullity.

Reasoning

The court invoked the Supreme Court's decision in Republic v Karisa Chengo, which upheld that Environment and Land Court judges are limited to land and environment matters and cannot hear criminal appeals. A judgment rendered without jurisdiction is a nullity, void ab initio, and cannot anchor a further appeal. The Court of Appeal therefore had no valid first appeal before it and could not engage with the merits of the conviction or sentence.

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The appropriate remedy where the first appeal is a nullity

Holding

The proceedings and judgment of the High Court were set aside and the first appeal remitted to the High Court for hearing before a judge with appropriate jurisdiction.

Reasoning

Rather than determine the second appeal on the merits, which would have required a valid first appeal judgment, the court granted the remedy that preserved the appellant's right of appeal: setting aside the void proceedings and ordering a fresh hearing of the first appeal by a properly empowered judge. No consequential orders were made regarding the conviction, which remains subject to the fresh first appeal.

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Legal principles established

A judge appointed to the Environment and Land Court has no jurisdiction to hear criminal appeals; a criminal appeal heard and determined by such a judge, and the resulting judgment, are a nullity.
Where a first appeal judgment is a nullity for want of jurisdiction, the proceedings and judgment must be set aside and the appeal remitted for hearing before a judge with appropriate jurisdiction.

Court orders

1.The proceedings and judgment of the High Court (Mutungi, J.) were set aside
2.The appellant's first appeal is to be placed before the High Court for hearing and disposal by a Judge with appropriate jurisdiction

On appeal from: High Court of Kenya at Bungoma; H.C.CR.A. No. 135 of 2012
Jurisdiction invoked: Appellate jurisdiction of the Court of Appeal over a second appeal in a criminal matter, read with the Supreme Court's jurisdictional ruling in Republic v Karisa Chengo on the limited jurisdiction of Environment and Land Court judges

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Emmanuel Ejore v Republic [2019] KECA 454 (KLR)", Case Analysis (2019). Criminal Appeal No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/454/eng@2019-07-25

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