Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment)

Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment) Neutral citation: [2024] KESC 38 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E030 OF 2023 MK KOOME, CJ, PM MWILU, DCJ & VP, MK IBRAHIM, N NDUNGU & W OUKO, SCJJ AUGUST 2, 2024 BETWEEN GODDRICK SIMIYU WANGA .............................................................. APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an appeal from the Judgment of the Court of Appeal (Gatembu, Nyamweya & Lesiit, JJ. A.) delivered on 17th March, 2023 in Criminal Appeal No. 15 of 2020) Guiding principles in admitting an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution The appeal challenged the decision of the Court of Appeal upholding the conviction and a sentence of 30 years imprisonment of the appellant on two counts of robbery with violence. The court found that counsel or a litigant was under strict obligation to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the court. The court further highlighted the guiding principles in admitting an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution. Reported by Kakai Toili Civil Practice and Procedure – appeals – appeals to the Supreme Court – form and content - whether it was mandatory for a litigant to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the Supreme Court – Constitution of Kenya, 2010, article 163(4)(a) and (b). Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals as of right in any matter relating to the interpretation or application of the Constitution – what were the principles to admit an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution under article 163(4)(a) of the Constitution – Constitution of Kenya, 2010, article 163(4)(a). Brief facts The appeal challenged the decision of the Court of Appeal upholding the conviction and a sentence of 30 years imprisonment of the appellant on two counts of robbery with violence. The appellant contended that the Court of Appeal erred by: accepting without question or analysis that the trial was conducted in a manner that was consistent with the Constitution and failing to make a nding that the trial court violated the appellant’s right to a fair trial. The appellant thus sought for among other orders; a declaration that his constitutional rights to fair trial, including the right to a fair appeal, held consistent with the rule of law were violated; and the quashing the conviction, setting aside the sentence and setting the appellant at liberty, or in the alternative, to return the matter to the trial court for a new trial conducted in accordance with the Constitution. In opposing the appeal, the respondent contended that the issues raised for determination by the instant court were not argued in the Court of Appeal.

Issues

i. Whether it was mandatory for a litigant to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the Supreme Court. ii. What were the guiding principles to admit an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution under article 163(4)(a) of the Constitution.

Held

1. Since the two avenues of the appellate jurisdiction of the court under article 163(4)(a) and (b) of the Constitution were distinct, either as of right on the constitutional issues; or on matters of general public importance, respectively, counsel or a litigant was under strict obligation to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the court. For that reason, it had become a matter of practice, for the court to independently satisfy itself that an appeal was properly lodged and that it had jurisdiction before it could entertain it.

2. To admit an appeal under article 163(4)(a) of the Constitution, the following principles applied, in so far as they were relevant to the appeal:

1. On the issue of jurisdiction, where a court’s jurisdiction was objected to by any party to the proceedings, such an objection must be dealt with in limine as a preliminary issue, before the meritorious determination of any cause, even where the objection had been argued in the appeal itself.

2. A court’s jurisdiction owed from either the Constitution or legislation or both; and that a court could not arrogate to itself jurisdiction exceeding that which was conferred upon it by the Constitution or law.

3. Under article 165(3)(d) of the Constitution, the High Court had original jurisdiction to hear any question respecting the interpretation of the Constitution. The Supreme Court in its appellate jurisdiction under article 163(3), subject to clauses (4) and (5) and article 163(4) (a) was the nal Court on matters involving the interpretation and application of the Constitution arising from the decision of the Court of Appeal.

4. Article 163(4) of the Constitution was not a thoroughfare for all intended appeals from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution or those that could be said to involve matters of general public importance would be entertained by the Supreme Court. It was not the mere allegation in pleadings by a party that clothed the court with jurisdiction.

5. The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163(4(a) of the Constitution.

6. Where specic constitutional provisions could not be identied as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate was that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application.

7. In addition, a party must indicate to the court in specic terms, the issue requiring the interpretation or application of the Constitution and must signal the perceived diculty or impropriety with the appellate court’s decision.

8. The Supreme Court retained the discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution, always bearing in mind that such a matter must be founded on cogent issues of constitutional controversy to warrant its input.

3. Given the nature of the pleadings and proceedings before the trial court and on the other hand, the decisions of the two superior courts below, the issues did not concern the application or interpretation of the Constitution. Rather, it was an ordinary case of robbery with violence, argued as such on facts. The allegations of constitutional controversy were being canvassed for the rst time before the instant court.

4. The appellant having properly identied precisely the relevant articles of the Constitution which in his view were violated by the respondent, he was, in addition, expected to convince the court that the subject of the appeal was the same issues in controversy and around which both the High Court and the Court of Appeal based their respective decisions.

5. The decision being challenged in the appeal had nothing to do with the interpretation or application of articles 49 and 50 of the Constitution. The appellant had not demonstrated that the Court of Appeal’s reasoning, and its conclusions took a trajectory of constitutional interpretation or application. The appellant had attempted to morph his case from an everyday trial for the oence of robbery with violence to one of violation of his constitutional rights. The appeal was nothing but an eort to take a second bite at the cherry. It presented neither exceptional circumstances nor an opportunity for the court to provide interpretive guidance on the Constitution. The court lacked jurisdiction to determine the appeal. It failed and accordingly the court downed its tools at that stage. 6. [Obiter] But even as we down our tools, we consider it paramount to restate the following for the sake of posterity and the development of jurisprudence, in terms of this court’s past decisions on similar cases. In this appeal, we have observed that the High Court substituted the death sentence with a custodial sentence of 30 years imprisonment ostensibly on the authority of our decision in the Muruatetu case. This sentence was later armed by the Court of Appeal on second appeal, despite the court acknowledging our decision in the Muruatetu case that the mandatory nature of the death sentence only applied to murder convictions and did not extend to robbery with violence. 7. [Obiter] In terms of article 163(7) of the Constitution, we expect all superior and subordinate courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu directions… Our decision in the Muruatetu case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Oences Act, or any other statute. The decision in the Muruatetu case applies only with respect to the mandatory nature of the death sentence under sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement. Petition dismissed; no orders as to costs.

Orders

Kshs. 6,000 to be deposited as security for costs upon lodging of the appeal be refunded to the depositor. Citations Cases Kenya

1. Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others Petition 4 of 2015; [2017] KESC 11 (KLR) - (Explained)

2. Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone Civil Appeal 171 of 2009; [2010] KECA 96 (KLR) - (Explained)

3. In the Matter of the Interim Independent Electoral Commission (Applicant) Constitutional Application 2 of 2011; [2011] KESC 1 (KLR) - (Followed)

4. Kahinga, Joseph Kaberia & 11 others v Attorney General Petition 618 of 2010; [2016] KEHC 3130 (KLR) - (Applied)

5. Kariuki, Moses Ngichu v Republic Criminal Appeal 228 of 2008; [2009] KECA 67 (KLR) - (Explained)

6. Lawrence Ndutu & 6,000 others v Kenya Breweries Limited Civil Case 279 of 2003; [2019] KEHC 9260 (KLR) - (Mentioned)

7. Lerai v Republic Criminal Appeal 107 of 2021; [2023] KECA 752 (KLR) - (Applied)

8. Macharia v Kenya Commercial Bank Limited & 2 others Application 2 of 2011; [2012] KESC 8 (KLR); [2012] 3 KLR 199 - (Explained)

9. Mose, Mark Oiruri v Republic Criminal Appeal 295 of 2012; [2013] KECA 67 (KLR) - (Applied)

10. Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others Petition 2 of 2014; [2014] KESC 49 (KLR) - (Applied)

11. Munyi, Gladys Wanjiru v Diana Wanjiru Munyi Petition 31 of 2014; [2015] KESC 9 (KLR) - (Applied)

12. Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) Petition 15 & 16 of 2015 (Consolidated); [2017] KESC 2 (KLR); [2017] 2 KLR 101 - (Applied)

13. Nasra Ibrahim Ibren v Independent Electoral & Boundaries Commission, Arnold Mutwiri Njabani & Safia Sheikh Adan Election Appeal 9 of 2018; [2018] KECA 500 (KLR) - (Explained)

14. Ndayara v Republic Criminal Appeal 11 of 2016; [2018] KESC 79 (KLR) - (Explained)

15. Okiya Omtatah Okoiti v Central Bank of Kenya & Kenya Bankers Association Commercial Civil Case 350 of 2016; [2020] KEHC 6110 (KLR) - (Applied)

16. Opore, Zebedeo John v Independent Electoral And Boundaries Commission Petition 418 of 2017; [2017] KEHC 9217 (KLR) - (Applied) Statutes Kenya

1. Constitution of Kenya articles 2(5)(6); 6(d);10(2)(a); 14(3)(d); 21(a); 23(3); 49(1); 50(1)(2)(j)(k)(4); 163(4)(a) — (Interpreted)

2. Criminal Procedure Code (cap 75) section 361(1)(a) — (Interpreted)

3. Evidence Act (cap 80) sections 25A, 144(3); 146; 175 — (Interpreted)

4. National Police Service Act (cap 84) sections 57, 60 — (Interpreted)

5. Penal Code (cap 63) section 296(2) In general — (Interpreted)

6. Sexual Oences Act (cap 63A) — (Cited)

7. Supreme Court Rules, 2011 (cap 9B Sub Leg) rule 39(1) — (Interpreted) Instruments

1. Basic Principles on the Role of Lawyers, 1990

2. International Covenant on Civil and Political Rights (ICCPR), 1966 article 14(3)(d)

3. Treaty for the Establishment of the East African Community article 6(d)

4. Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2012 Advocates Mr Timothy Bryant for the appellant. Ms Fredah Mwanza for the respondent.