Case Metadata |
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| Case Number: | Criminal Application 5 of 1993 |
|---|---|
| Parties: | Mark Oweggi v Republic |
| Date Delivered: | 02 Nov 1993 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Ruling |
| Judge(s): | Riaga Samuel Cornelius Omolo, Abdul Majid Cockar, Mathew Guy Muli |
| Citation: | Mark Oweggi v Republic [1993] eKLR |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Nairobi |
| Case Summary: | Mark Oweggi v Republic Court of Appeal, at Nairobi November 2, 1993 Cockar, Muli & Omolo JJ A Criminal Application No Nai 5 of 1993 (Appeal from a ruling of the High Court of Kenya at Nairobi (Mr Justice Oguk) dated 28th September, 1993 in Misc Criminal Appl No 419 of 1993) Constitutional law – interpretation of the Constitution – whether a question of conflict between two Acts of Parliament is a matter requiring the interpretation of the Constitution by a Constitutional Court – section 67 (1) Constitution of Kenya Statutes – interpretation of statues – conflict between two statutes – whether such conflict is a matter for constitutional interpretation. Attorney General – power to prosecute – whether the Advocates Act can qualify the Attorney General’s power to prosecute criminal cases. The applicant was facing a criminal charge in the subordinate court for the offence of stealing by agent contrary to section 283 of Penal Code. He sought a constitutional reference to the High Court for the interpretation of the provisions of the Advocates Act vis-a-vis section 283 of the Penal Code. His argument was that the offence for which he was being prosecuted arose in the course of the performance of his duties as an advocate and before prosecution could be commenced by the Attorney General a report by the Advocates Disciplinary Committee created under the Advocates Act should be made to the Attorney General in accordance with section 80 of the Act. He thus argued that since the Penal Code under which he was being prosecuted did not make similar provisions as those of section 80 of the Advocates Act, the two statutes were in conflict. Held: 1. Section 67 (1) of the Constitution can only be invoked where any question as to the interpretation of the Constitution itself arises in any proceedings in any subordinate court. 2. No question arose in the Magistrate’s Court as to the interpretation of the Constitution. What arose in the Magistrates Court was the alleged conflict between section 80 of the Advocates Act and section 283 of the Penal Code. 3. A conflict between two Acts of Parliament is not a matter requiring the interpretation of the Constitution. 4. Section 26 (3) (a), (b) and (c) of the Constitution gives the Attorney – General unfettered powers in matters relating to criminal prosecutions. Application dismissed. Cases No cases referred to. Statutes 1. Penal Code (cap 63) section 283 2. Advocates Act (cap 16) section 80 3. Constitution of Kenya sections 26(3) (a) (b) (c); 67(1) |
| Case Outcome: | Application dismissed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Cockar, Muli & Omolo JJ A)
CRIMINAL APPLICATION NO NAI 5 OF 1993
MARK OWEGGI …………………..APPELLANT
VERSUS
REPUBLIC…………………..……RESPONDENT
(Appeal from a ruling of the High Court of Kenya at Nairobi
(Mr Justice Oguk) dated 28th September, 1993
in Misc Criminal Appl No 419 of 1993)
RULING
We are of the clear view that there is no merit in the application before us and it must accordingly fail.
The applicant Mr Mark Oweggi is an advocate of the High Court of Kenya. He is being prosecuted in the Court of the Chief Magistrate at Nairobi on charge of stealing by an agent contrary to section 283 of the Penal Code. That charge, he alleges, arose in the performance of his duties as an advocate and according to him, before the prosecution could be started by the Attorney-General section 80 of the Advocates Act should have been complied with. The proviso to that section is to the effect that no prosecution for an offence under that section shall be instituted unless a report has been made to the Attorney – General by the Disciplinary Committee created under the Act. The applicant’s contention appears to be that as he is an advocate, he can only be prosecuted for theft of a client’s property in accordance with the procedure set out under the Advocate’s Act and that since section 283 of the Penal Code under which he is being prosecuted does not set out similar requirements as those in section 80 of the Advocates Act, the two Acts are in conflict. He accordingly asked the trial magistrate and subsequently the High Court that a Constitutional Court should be instituted.
“to make a determination or interpretation in respect of the provisions of the Advocates Act vis-à-vis the Penal Code section 283”
According to the applicant his plea for a Constitutional Court was made pursuant to section 67 (1) of the Constitution. Section 67(1) of the Constitution can only be invoked where any question as to the interpretation of the Constitution itself arises in any proceedings in any subordinate court. As far as we can discern from the record, no question arose in the Magistrate’s Court as to the interpretation of the Constitution, and which section was to be interpreted.
What arose in the Magistrate’s Court was the alleged conflict between section 80 of the Advocates Act and section 283 of the Penal Code. A conflict between two Acts of Parliament is not a matter requiring the interpretation of the Constitution.
Again, we drew the attention of the applicant to the provisions of section 26 (3) (a), (b) and (c) of the Constitution which gives the Attorney-General unfettered powers in matters relating to criminal prosecutions. If section 80 of the Advocates Act were to purport to derogate from the provisions of Constitution then the answer would be obvious and we need not state it. As far as we can discern from the material available to us on record, nothing has arisen in the subordinate court which requires the interpretation of the Constitution. What we are saying is that we are not satisfied that the applicant’s intended appeal is an arguable one and that being our view of the matter we order the application to be dismissed.
Dated and Delivered at Nairobi this 2nd day of November, 1993
A.M COCKAR
………………………….
JUDGE OF APPEAL
M.G. MULI
………………………….
JUDGE OF APPEAL
R.S.C OMOLO
………………………….
JUDGE OF APPEAL
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