Entrance to Kodiaga Main Prison in this picture taken on July 25, 2017. The appellate court set aside the death sentences of two convicts and ordered their immediate release.
Two men sentenced to death for robbery with violence and gang rape have been freed after the Court of Appeal nullified their convictions, ruling that one of the High Court judges who heard their first appeal lacked jurisdiction in a criminal matter.
The appellate judges found that the High Court bench, comprising Justices Juma Chitembwe and Hellen Wasilwa, was improperly constituted, rendering the entire first appeal invalid and overturning the convictions of Benard Ingunza and David Libabu.
While Justice Chitembwe was properly assigned to the case, Justice Wasilwa, who sits at the Employment and Labour Relations Court, had no authority to preside over criminal appeals.
Justice Hellen Wasilwa at Milimani Commercial Court in Nairobi on January 12, 2017.
The judges were assigned the case in 2013 at a time when the Judiciary was racing to clear a growing backlog of appeals at the High Court, a period that saw increased deployment of judges across divisions to fast-track pending cases.
"A criminal appeal in which a specialised court judge participated is a nullity," the appellate bench stated while ordering the convicts' release.
The court also declined to order a retrial, citing the lengthy period the two had spent in custody since 2009, deeming a fresh hearing oppressive and unjust.
The case stemmed from a violent robbery on the night of June 25–26, 2009, in Kivagala, Vihiga County. The two men were accused of attacking a woman identified as Ms JI, while armed with pangas, rungus, and torches. Prosecutors said they robbed her of household goods, electronics, livestock, and cash, all valued at Sh22,450 before assaulting her.
A magistrate’s court convicted them on both counts and sentenced them to death. They appealed the verdict at the High Court in Kakamega, where a two-judge bench dismissed their appeal in December 2013.
Solid case
The High Court upheld the trial court’s findings, ruling that the prosecution had proved its case beyond reasonable doubt. The judges affirmed the identification evidence, finding the complainant’s testimony credible and consistent.
Ms JI testified that she was asleep when four robbers stormed her house. She was awakened when one of them touched her shoulder.
She identified two of the attackers as people she knew from her neighborhood and who were customers at her shop. The trial court heard that she recognised them because they used torches, illuminating each other’s faces. She reported them to the police by name and later received medical treatment, documented in a P3 form.
The High Court also accepted the recovery of stolen items and the circumstances of the arrest as corroborative evidence linking the accused to the crimes.
It ruled that the offenses were committed with violence and in concert, meeting the legal threshold for robbery with violence and gang rape.
However, the case took a dramatic turn during the second appeal. The convicts argued that the High Court bench was improperly constituted because Justice Wasilwa, assigned to the Employment and Labour Relations Court, lacked jurisdiction to hear criminal appeals. Both the defense and prosecution advocates agreed on this point.
The Court of Appeal emphasised that jurisdiction is fundamental and cannot be assumed. It cited precedent establishing that a judge appointed to a specialised court cannot exercise the High Court’s jurisdiction in criminal matters.
“Jurisdiction is everything,” the appellate court said, adding that a court must “down its tools” once it finds it lacks authority to determine a matter.
The judges ruled that Justice Wasilwa’s participation rendered the High Court proceedings invalid.
“The upshot is that the High Court bench was not constituted in accordance with the law. The hearing and disposal of the appeal were therefore a nullity, which this court cannot condone or perpetuate,” they stated, underscoring the constitutional separation between the High Court and specialised courts of equal status.
This ruling effectively erased the High Court’s decision upholding the convictions, leaving the case without a valid first appellate determination.
While such a finding would typically result in a retrial before a properly constituted bench, the Court of Appeal declined this option, considering the appellants’ prolonged incarceration.
“Taking into consideration the period the appellants have been incarcerated, we find that rehearing the appeal at the High Court would be oppressive and an injustice,” the judges said.
The court allowed the appeal, quashed the convictions, set aside the death sentences, and ordered the immediate release of the two men.
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