Republic v Mohammed & another (Criminal Application 2 of 2018) [2018] KESC 59 (KLR) (28 September 2018) (Ruling)
The bottom line
#Supreme Court can review certification denials and stay acquittals using inherent power.
What this practically means
#The Supreme Court ruled that it has the power to review a Court of Appeal decision that refuses to certify a case as one of general public importance. It also held that it can temporarily stop an acquittal and keep the accused in custody pending appeal, even though no law explicitly says so. This power comes from the Court's duty to do justice. The Court granted the DPP's request to appeal the acquittal of two Iranian nationals in an explosives case, citing national security concerns.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction under Article 163(5) of the Constitution to review a denial of certification by the Court of Appeal under Article 163(4)(b).
- 2.Whether the applicant has made out a case for certification that the intended appeal involves a matter of general public importance.
- 3.Whether the Supreme Court has jurisdiction to stay an order of acquittal and remand the acquitted persons in custody pending the hearing of the appeal.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(5) to review a denial of certification by the Court of Appeal.
The Supreme Court has jurisdiction to review both a grant and a denial of certification by the Court of Appeal under Article 163(5).
The Court interpreted Article 163(5) broadly, applying the principle of harmonization under Article 259(1) and the rights to non-discrimination and fair hearing under Articles 27 and 50(1). It held that denying a party aggrieved by a refusal to certify a matter as one of general public importance would be discriminatory and a denial of fair hearing. The Court affirmed its earlier decisions in Sum Model and Hermanus cases, and upheld Rule 24(2) of the Supreme Court Rules, 2012, which allows an aggrieved party to apply for review within fourteen days.
Whether the Supreme Court has jurisdiction to stay an order of acquittal and remand the acquitted persons in custody pending appeal.
The Supreme Court has inherent jurisdiction to stay an acquittal and remand the acquitted person in custody pending the hearing of an appeal against the acquittal.
The Court found that while there is no express statutory provision in Kenya granting jurisdiction to stay an acquittal, the Court is not helpless. It relied on its inherent jurisdiction, which emanates from its broader power to administer justice, and on Articles 20, 50(1), 163(3)(b), and 259 of the Constitution. The Court reasoned that to do otherwise would be a dereliction of its constitutional obligation and would render the right to a fair trial under Article 50(1) ineffectual. It drew persuasive authority from Indian and Malaysian jurisprudence where similar inherent or constitutional powers were recognized.
Whether the applicant made out a case for certification that the intended appeal involves a matter of general public importance.
The applicant made out a case for certification because the matter touches on national security and terrorism, which is of great general public importance.
The Court took judicial notice of the history of terrorist attacks in Kenya and the threat to national security posed by the possession of lethal explosives like RDX. It found that the intended appeal transcends the circumstances of the particular case and has a significant bearing on public interest. The Court therefore substituted the Court of Appeal's denial of certification with an order granting leave to appeal.
Legal principles established
#- The Supreme Court can review both grants and denials of certification by the Court of Appeal under Article 163(5).
- The Supreme Court has inherent jurisdiction to issue orders, including staying an acquittal, to ensure justice is done.
- A stay of acquittal and remand of an acquitted person is a serious order granted sparingly only on showing flight risk.
- A matter involving national security and terrorism is of general public importance warranting Supreme Court appeal.
- Denying a party review of a certification denial would violate rights to non-discrimination and fair hearing.
- The Supreme Court's inherent jurisdiction is derived from its nature as a court of law and constitutional provisions.
Court orders
#- 1.The Court of Appeal's decision of 16th February 2018 declining certification is reviewed and set aside.
- 2.The applicant is granted leave to appeal against the Court of Appeal's judgment of 26th January 2018.
- 3.The respondents' acquittal by the Court of Appeal is stayed pending the hearing and determination of the intended appeal.
- 4.The respondents shall be held in police custody pending the hearing and determination of the intended appeal.
- 5.The applicant shall file and serve its appeal within thirty days.
- 6.The appeal shall be heard on priority basis.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(b) and (5) of the Constitution of Kenya, 2010
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.
Article 163(5) of the Constitution vests the Supreme Court with jurisdiction to review the Court of Appeal's decision to grant or decline certification that a matter is one of general public importance.
this Court has inherent jurisdiction, not expressly conferred by the Constitution or any statute, but accruing to it by its existential nature as a court of law duly constituted to administer justice, to issue any orders to ensure that the ends of justice in any particular case are met.
Orders of stay and remand of an accused-respondent should sparingly granted. The prosecution must demonstrate to the court the risk of flight likely to render the appeal or intended appeal an academic exercise if the respondent is not remanded.
we hereby review and set aside the Appellate Court's said decision of 16th February 2018 declining to grant certification that this matter is of general public importance and denying the applicant leave to appeal to this Court against the Court of Appeal's decision of 26th January 2018 which allowed the respondents' appeal, quashed their conviction and ordered their repatriation.
Consequently, we order that pending the filing, hearing and final determination of the applicant's intended appeal, the respondents' acquittal by the Appellate Court is hereby stayed and the respondents shall be held in police custody.
Key timeline
#Practical implications
#New route to challenge certification denials
Lawyers can now apply directly to the Supreme Court for review of a Court of Appeal decision refusing to certify a matter as one of general public importance. This must be done within 14 days under Rule 24(2). Also, when seeking a stay of acquittal, you must present concrete evidence of flight risk—mere assertions won't suffice. The Court will use its inherent jurisdiction sparingly.
National security cases can bypass finality
Businesses involved in sensitive sectors like import/export of chemicals or security should note that acquittals in national security cases may be reopened. The Supreme Court can stay an acquittal and keep individuals in custody pending appeal, even after a lower court has set them free. This means finality is not guaranteed when the state argues general public importance.
Acquittal does not guarantee freedom
If you are acquitted in a case the state considers important, you may still be remanded in custody while the state appeals. The Supreme Court can order your continued detention if there is a risk you will flee, especially if you are a foreign national from a country without an extradition treaty. Your right to liberty is balanced against the state's interest in pursuing the appeal.
Frequently asked questions
#Can the Supreme Court in Kenya review a Court of Appeal decision to deny certification?+
Yes. The Supreme Court held it has jurisdiction under Article 163(5) to review both a grant and a denial of certification by the Court of Appeal. This ensures fairness and prevents discrimination against parties who are denied the chance to appeal on grounds of general public importance.
Can an acquitted person be remanded in custody pending appeal in Kenya?+
Yes, but only in exceptional cases. The Supreme Court has inherent jurisdiction to stay an acquittal and remand the person if the prosecution shows a real risk of flight that would make the appeal useless. This power is used sparingly and requires special circumstances, like the accused being a foreign national with no extradition treaty.
What is inherent jurisdiction of the Supreme Court of Kenya?+
Inherent jurisdiction is the power a court has simply because it exists as a court of law, even if no law explicitly gives it that power. The Supreme Court used this to order a stay of acquittal, saying it must do justice and cannot be helpless when its orders would otherwise be rendered meaningless.
What makes a case a matter of general public importance in Kenya?+
A case is of general public importance if it goes beyond the interests of the parties and affects the public at large. In this case, the Supreme Court found that possession of RDX explosives and national security threats made the matter one of general public importance, warranting an appeal to the highest court.
Cite this brief
#Cite this brief
Caselaw, "Republic v Mohammed & another (Criminal Application 2 of 2018) [2018] KESC 59 (KLR) (28 September 2018) (Ruling)", Case Analysis (2018). Criminal Application 2 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/59/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.