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Court of AppealPartially AllowedCriminal Appeal No. 77 of 2015

Erupe Lokutan v Republic

Court of Appeal
15 January 2019
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
397 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a criminal appeal heard by the wrong judge was invalid, ordering a fresh hearing rather than an acquittal.

What this practically means

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Executive summary

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The appellant was convicted by the Magistrate's Court at Lodwar of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court was dismissed, and he lodged a second appeal to the Court of Appeal at Eldoret. Before the Court of Appeal, Prosecuting Counsel conceded the appeal on the single ground that one of the judges who had heard the first appeal was a judge of the Environment and Land Court and therefore lacked jurisdiction to hear a criminal appeal. She sought a re-hearing of the first appeal. Counsel for the appellant, however, opposed a re-hearing and urged the Court to acquit the appellant outright. Applying the Supreme Court's decision in Republic v Karisa Chengo & 2 others on the distinct constitutional jurisdictions of courts, the Court of Appeal held that the hearing of the first appeal was a nullity because the bench was not properly constituted, and that the High Court judgment dismissing the appeal was equally a nullity. It reasoned that the magistrate's conviction and sentence therefore still stood, and that acquittal could not arise because the first appeal had never been properly heard. The Court allowed the second appeal to the extent of setting aside the proceedings and judgment of the first appellate court, and directed that the first appeal be re-heard before a competent bench of the High Court with priority. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the hearing of the first appeal by a High Court bench that included a judge of the Environment and Land Court was properly constituted
  2. 2.What orders should follow if the first appellate proceedings were a nullity - acquittal or re-hearing

Key legal issues

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01

Effect of a improperly constituted first appellate bench on the appeal proceedings

Holding

Following Republic v Karisa Chengo & 2 others, the hearing of the first appeal by a bench including an Environment and Land Court judge was a nullity, and the judgment dismissing the appeal was likewise a nullity.

Reasoning

Relying on the Supreme Court's decision in Republic v Karisa Chengo & 2 others on the jurisdiction of constitutionally distinct courts, the Court held that a judge of the Environment and Land Court had no jurisdiction to hear a criminal appeal. Proceedings heard by such a bench are a nullity, as is the judgment delivered, leaving the trial conviction intact.

p. 1
02

Whether the appellant should be acquitted or the appeal re-heard

Holding

The appropriate remedy is setting aside the null first appellate proceedings and directing a re-hearing before a competent High Court bench; acquittal cannot be granted because the first appeal was never properly heard.

Reasoning

The Court reasoned that since the nullity of the first appellate proceedings leaves the magistrate's conviction and sentence standing, no acquittal can issue on a second appeal. The only course consistent with justice is to set aside the null proceedings and order a fresh hearing of the first appeal by a properly constituted bench, with priority.

p. 1

Legal principles established

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  • A criminal appeal heard by a High Court bench that includes a judge of the Environment and Land Court is not properly constituted, and the resulting judgment is a nullity.
  • Where first appellate proceedings are a nullity, the conviction and sentence of the trial court remain standing and the remedy is a re-hearing, not an acquittal.

Court orders

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  1. 1.Appeal allowed to the extent of setting aside the proceedings and judgment of the first appellate court (High Court)
  2. 2.The appellant's first appeal to be re-heard before a competent Bench of the High Court
  3. 3.The re-hearing to be given priority

The bench

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

EG
majority

Wrote the judgment

HO
majority

Wrote the judgment

JM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kitale
HCCRA No. 108 of 2011
Jurisdiction invoked
Appellate jurisdiction over a second appeal in a criminal matter (Constitution and Court of Appeal jurisdiction; not expressly cited in the judgment)

Relief refused

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Acquittal of the appellant as urged by his counsel

The conviction and sentence by the magistrate's court still stand; acquittal cannot arise where the first appeal was never properly heard

p. 1

Costs

No costs order made in the judgment.

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.

In light of the Supreme Court decision in Republic vs Karisa Chengo & 2 others, it is evident that the hearing of the appellant’s appeal in the first appellate court was a nullity as the Bench was not properly constituted.
p. 1Nullity of proceedings before an improperly constituted bench
The issue of an acquittal cannot arise as the appellant’s appeal has not been properly heard.
p. 1No acquittal where first appeal was a nullity
the orders that commends itself to us is to allow this appeal to the extent of setting aside the proceedings and judgment of the 1st appellate court and direct that the appeal be re-heard before a competent Bench of the High Court and that the matter be given priority.
p. 1Final orders - setting aside and re-hearing

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, "Erupe Lokutan v Republic", Case Analysis (2019). Criminal Appeal No. 77 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1049/eng@2019-01-15

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