Case Metadata |
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| Case Number: | Criminal Appeal 45 of 1988 |
|---|---|
| Parties: | Jopley Constantine Oyieng v Republic |
| Date Delivered: | 24 Nov 1988 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | James Onyiego Nyarangi, Harold Grant Platt |
| Citation: | Jopley Constantine Oyieng v Republic [1988] eKLR |
| Case History: | (Appeal from an Order of the High Court at Nairobi, Aragon J) |
| Court Division: | Criminal |
| County: | Nairobi |
| History Judges: | Ernest Fredrick Aragon |
| Case Summary: | 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. Held: 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. Cases No cases referred to. Statutes 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) |
| History County: | Nairobi |
| Case Outcome: | Appeal struck out. |
| 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: Nyarangi, Platt & Apaloo JJA)
CRIMINAL APPEAL NO 45 OF 1988
BETWEEN
JOPLEY CONSTANTINE OYIENG.................. APPELLANT
AND
REPUBLIC............................ RESPONDENT
JUDGMENT
(Appeal from an Order of the High Court at Nairobi, Aragon J)
November 24, 1988, Nyarangi, Platt & Apaloo JJA delivered the following Judgment.
This is an Appeal against the order of the High Court made by Aragon J on 12th February, 1988. The order was after a short hearing on a preliminary issue raised by Mr Chunga, the D.P.P., that the application which was made under sections 67 and 84 of the Constitution of Kenya was incompetent.
The facts of the matter can be stated quite shortly.
The appellant lost his job in the Civil Service. It is not altogether clear when but the appellant formed the opinion that his collegues had schemed against him and that consequently a crime had been committed so in 1986 the appellant went before the Chief Magistrate for permission for private prosecution.
The Chief Magistrate declined to grant leave. In 1987 the appellant applied yet again for leave but the Chief Magistrate refused to oblige. As a result of those proceedings the appellant filed Criminal application number 467 of 1987 in the High Court, Nairobi.
Before us the appellant put forward the argument that he was not heard by the High Court on the substantive application and that the trial judge erred in his conclusion that the application was incompetent. We do not take that view.
In the situation which presented itself, the appellant’s first application to be permitted to prosecute in person is deemed to have been made under section 88(1) of the Criminal Procedure Code. The Magistrate, having formed the opinion that the appellant’s complaint did not disclose an offence, made the appropriate order to refuse to admit the complainant under section 89 (5) of the Criminal Procedure Code.
As respects issues of the Constitution, if a question as to the interpretation of the Constitution of Kenya arose during the proceedings before the subordinate court and the magistrate felt there was substantial question of law involved, the subordinate court cold refer the question to the High Court.
So it is the subordinate court which makes the reference under section 67 (1) of the Constitution of Kenya (the Constitution), not the party. All that the party can do is to request the surbodinate court to refer the issue to the High Court in which case the subordinate court shall refer as requested.
It is perfectly clear that there was no matter before the Chief Magistrate as to the interpretation of the Constitution. For that reason section 67 of the Constitution did not apply.
So one finds, as we see it, the issue narrowing itself down to one point namely: the subordinate court having not made a reference to the High Court, there could not be anything in the Constitution identified for interpretation.
Back, then, to section 84. That section gives right of different application to the High Court if a person alleges that any of the provisions of section 70 to 83 (inclusive) has been, is being or is likely to be contravened. In the instant case, the appellant was pursuing a right to file a private prosecution. Only the Attorney-General has the right under section 26 of the Constitution to institute criminal proceedings.
No similar right is extended to a private individual and it is obvious that section 88 (1) of the Criminal Procedure Code does not override section 26 of the Constitution. Section 26 (3) contemplates prosecutions by authorized parties in respect of which the Attorney General may act as provided in the sub-section. One hurdle the appellant does not get over even under section 84 of the Constitution is that he fails to show he is within sections 79 to 83 (inclusive) of the Constitution.
For the reasons we have stated, the application under sections 67 and 84 of the Constitution was incompetent. Even if the matter before the High Court was the provision of section 67 (1) of the Constitution, there would be no appeal as no such right has been given. Right of appeal can only be given by statute. This therefore, was not a criminal appeal. We hold that the appeal is incompetent and is struck out.
Dated and delivered at Nairobi this 24th day of November , 1988
J.O. NYARANGI
........................................
JUDGE OF APPEAL
H.G. PLATT
...........................................
JUDGE OF APPEAL
F.K. APALOO
..........................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
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