Article 164(3) of the Constitution did not provide an automatic right of appeal to the Court of Appeal for all High Court decisions.

Republic v Jeffrey Okuri Pepela & 24 others

Criminal Application No 3 of 2016

Court of Appeal at Malindi

Alnashir Visram, W Karanja, M K Koome, JJA

October 11, 2018

Reported by Beryl A Ikamari

Constitutional Law-interpretation of the provisions of the Constitution-interpretation of article 164(3) of the Constitution-right of appeal to the Court of Appeal against decisions of the High Court-whether article 164(3) of the Constitution granted litigants an automatic right of appeal to the Court of Appeal with respect to all decisions of the High Court-Constitution of Kenya 2010, article 164(3).

Statutes-interpretation of the statutory provisions-interpretation of section 186 of the Kenya Defence Forces Act 2012 (as it was before the 2016 amendments)-effect of the absence of a finality clause providing that the decision of the High Court on an appeal from the Court Martial was final-Constitution of Kenya 2010, article 27; Kenya Defence Forces Act, No 25 of 2012, section 186.

Brief facts

The Court Martial sentenced the respondents to life imprisonment after they faced charges for the offence of desertion. On an appeal to the High Court, the offence of desertion was substituted with the offence of absence without leave and the sentence was reduced to 2 years imprisonment. The applicant filed a notice of appeal and a memorandum of appeal, intending to file an appeal at the Court of Appeal.

The issue as to whether there was an automatic right of appeal by virtue of article 164(3) of the Constitution arose. An additional question was on whether, if such an automatic right did not exist, the Court of Appeal ought to grant the applicant leave to appeal. The Kenya Defence Forces Act 2012 was silent on the issue as to whether leave to appeal was required and whether further appeals could be lodged at the Court of Appeal. A 2016 amendment to the Kenya Defence Forces Act expressly allowed for further appeals to the Court of Appeal. Out of abundance of caution, the applicant also filed an application seeking leave in order to appeal to the Court of Appeal.

Issues

1. Whether under article 164(3) of the Constitution there was an automatic right of appeal to the Court of Appeal against the decisions of the High Court.
2. Whether a further appeal to the Court of Appeal against a decision arising from the Court Martial was permissible under section 186 of the Kenya Defence Forces Act 2012 as it was before the 2016 amendments were made to it.

Relevant provisions of the law.

Constitution of Kenya 2010, article 164(3):

The Court of Appeal has jurisdiction to hear appeals from—

 a) the High Court; and

 b) any other court or tribunal as prescribed by an Act of Parliament.

Held

1. There were divergent views from Court of Appeal decisions on whether there was an automatic right of appeal as concerned High Court decisions as provided for under article 164(3) of the Constitution. In Judicial Service Commission & Secretary, Judicial Service Commission v. Kalpana H Rawal [2015] eKLR, it was said that the wording of article 164(3) of the Constitution was not qualified by words like 'where a right of appeal arises,' and the import was that it provided an automatic constitutional right of appeal. On the other hand in Nyutu Agrovet Limited v. Airtel Networks Limited [2015] eKLR the Court of Appeal held that article 164(3) of the Constitution could not be invoked where the primary statute expressly disallowed a right of appeal.
2. Article 164(3) of the Constitution did not confer a right to appeal to every person who desired to appeal to the Court of Appeal against any decision even where leave to appeal was a pre-requisite before an appeal could be made to the Court. It was not a carte blanche for all decisions of the High Court to be appealable to the Court of Appeal as of right. The right of appeal could be restricted by statute.
3. The right to appeal as provided for in section 186 of the Kenya Defence Forces Act had to be interpreted in the correct context. Section 115 of the Armed Forces Act (repealed) provided that the decision of the High Court on appeal from a decision of the Court Martial was final and not subject to a further appeal. Before the 2016 amendment, section 186 of the Kenya Defence Forces Act provided for appeals from the Court Martial without including a finality clause wherein there could be no further appeal after the High Court made its judgment. The absence of the finality clause was important.
4. Article 27 of the Constitution provided for the right to equality and freedom from discrimination. That right entailed equality of all persons before the law and the right to equal protection and equal benefit of the law. Parity or equality of arms was a cardinal tenet in any fair trial. When the DPP appeared in court as a party, he had the same rights as the other parties and had to benefit from the same rights accorded to the other parties.
5. It was the need to conform with the Constitution that precipitated the subsequent amendments to the Kenya Defence Forces Act and also the Criminal Procedure Code to grant the DPP the same rights as other appellants to move the Court on a second appeal in matters arising from the Court Martial and subordinate courts.
6. The applicant had a right of appeal to the Court of Appeal against the impugned decision. That right did not arise from the 2016 amendment to the Kenya Defence Forces Act, because amendments did not operate retrospectively, but because the right was endowed by the Constitution which expressly forbid discrimination and it was not outlawed by any statute.

Application allowed.

Orders:-

1. No order as to costs.
2. Applicant to file the intended appeal within 14 days of the date of the ruling.