BY SAM ALFAN.
The over 400 criminal cases now hang in the balance after the Supreme Court declared that High Court Judge SC assigned to special divisions cannot handle criminal cases.
The ruling by the apex court implies that all the criminal appeals should be heard afresh whether the convictions were upheld or quashed.
The seven-judge bench, led by the Supreme Court President and Chief Justice David Maraga, annulled all the verdicts delivered by two-Judge mixed benches appointed by retired Chief Justice Willy Mutunga to handle more than 2,000 criminal appeals between October 14th and 18th, 2013.
All the judges in the High were bestowed with equal powers to handle cases filed before them but their status and assignments were limited to their specific terms of employment spelt out by the Judicial Service Commission (JSC), the Supreme Court held in its 60-page judgment delivered by Justice Isaac Lenaola on Friday .
The highest court in the land threw out an appeal by the Director of Public Prosecutions (DPP) by upholding the decision made on May 8, 2015 by Appellate Judges Hannah Okwengu, Milton Makhandia and Fatuma Sichale in Malindi that some of the panels appointed by Dr Mutunga were unconstitutional.
Senior Assistant DPP Njagi Nderitu and Assistant DPP Vincent Monda had argued that Dr Mutunga had expressly authorized 79 Judges to handle cases countrywide during the Criminal Appeals Service Week through a legal notice published on October 4, 2013. The move was meant to decongest prisons and clear the backlog of cases.
However, the Supreme Court ruled that some of the mixed benches were unlawfully constituted since some of the Judges were appointed and took their Oath of office to work in special divisions of the High Court. The court nullified Dr Mutunga’s appointment of the Judges who were legally disqualified from handling the criminal appeals.
The court upheld submissions by lawyers Tukero Ole Kina and Ngumbao Mutua claimed Dr Mutunga exceeded his administrative jurisdiction by purporting to allow Judges who had been specifically hired to work in the Environment and Lands Court and Employment and Labour Relations Court to determine criminal appeals. They said the criminal appeals by violent robbery convicts Karisa Chengo, Jefferson Kalama Khenga and Kitso Charo Ngati were compromised because were handled by lawyer Oscar Angote of the Environment and Land Court and High Court Judge Christine Meoli.
“We have already held, in concurrence with the Court of Appeal, that the “High Court” which affirmed the convictions of the three respondents, was unconstitutionally empaneled by the retired Chief Justice. Their convictions could, therefore, neither be affirmed or overturned by such a bench,” Justices Maraga, Deputy Chief Justice Philomena Mwilu and Justices Lenaola, Ibrahim Mohamed , Jackton Ojwang, Njoki Ndung’u and Smokin Wanjala said in their unanimous decision.
“It follows, therefore, that in light of the terms of Article 2 (4) of the Constitution, despite the drawback our decision will have on the backlog of cases in our courts, we have no choice but to accede to the plea by the three convicts that their appeals at the High Court level be heard afresh. Our decision must, of necessity, have similar effect on all the appeals that were determined by similarly empaneled High Court benches,” the Supreme Court Judges said.