Fred Kwasi Apaloo, James Onyiego Nyarangi, Harold Grant Platt
Jopley Constantine Oyieng v Republic  eKLR
Jopley Constantine Oyieng v Republic
Court of Appeal, at Nairobi
November 24, 1988
Nyarangi, Platt & Apaloo JJA
Criminal Appeal No 45 of 1988
(Appeal from an Order of the High Court at Nairobi, Aragon J)
Constitutional Law – references on the interpretation of the Constitution – references to the High Court under section 67(1) of the Constitution –procedure for making such reference–– party denied leave to make institute a private prosecution by a subordinate court – party filing application for interpretation of his constitutional rights in the High Court – whether application competent – whether application raising any issue for interpretation of the Constitution.
The appellant sought leave from a Chief Magistrate’s Court to institute a private prosecution. The Court declined to grant leave and the appellant brought an application in the High Court under sections 67 and 84 of the Constitution.
The High Court, upon a brief hearing on a preliminary objection raised by the State, observed that the wrong procedure had been followed and dismissed the application.
The appellant appealed to the Court of Appeal arguing that the High Court had not heard him on the substantive application and that the judge had erred in his conclusion that the application was incompetent.
1. The reference of an issue for the interpretation of the Constitution to the High Court under section 67(1) of the Constitution is made by the subordinate court in which the party applies for such reference; such reference is not made by the party himself.
2. In this case, there was no matter before the Chief Magistrate as to the interpretation of the Constitution and for that reason, section 67 of the Constitution did not apply.
3. The subordinate court having not made a reference to the High Court, there could not be anything in the Constitution identified for interpretation.
4. Under section 26 of the Constitution, only the Attorney-General has the right to institute criminal proceedings and no similar right is extended to a private individual. Section 26(3) contemplates prosecutions by authorised parties in respect of which the Attorney-General may act as provided in the subsection.
5. The appellant had therefore failed bring himself within the provisions of sections 70 to 83 (inclusive) of the Constitution so as to entitled him to apply for redress to the High Court under section 84 of the Constitution. His application to the High Court was therefore incompetent.
6. Even if the matter before the High Court had been competent as being an application under section 67(1) of the Constitution, there would be no appeal as no right o f appeal has been given. A right of appeal can only be conferred by statute.
Appeal struck out.
No cases referred to.
1. Constitution of Kenya sections 26, 26(3), 67, 67(1), 70-83, 84,
2. Criminal Procedure Code (cap 75) sections 88(1), 89(5)