- The convict will be required to present herself before the Kisii High Court deputy registrar within two weeks from the day of the judgement so that the hearing date for the appeal can be heard.
- Marcella Nyabonyi Otieno had been convicted in a Keroka senior resident magistrate’s court and sentenced to life imprisonment.
Image: FILE
It is a momentary relief for a woman convicted of robbery with violence after a court of appeal quashed a High Court decision that upheld her conviction.
Marcella Nyabonyi Otieno had been convicted in a Keroka senior resident magistrate’s court and sentenced to life imprisonment.
She appealed the conviction and sentence at a High court but which got tossed out for lack of credible grounds.
And she proceeded to appeal the decision at the court of appeal citing a host of grounds.
But the appellate court has refused to hear the appeal, finding that one of the two judges who heard the appeal at the High Court was from the Environment and lands court and not from the criminal division, hence not competent to hear the appeal before him.
The appeal at the High Court was heard by a bench of two Judges that had E. Maina and S. Okong’o. Judge Okong’o was the one from the Environment and Lands Court.
The court of appeal found that it was a mistake for the Environment and Lands judge to sit on the appeal because the ELC was a specialized unit whose orientation did not give the judge the competence to sit on and decide on the matter before him.
The appeal judges said their decision was grounded on a Supreme Court decision cited as Republic -vs- Karisa Chengo & 2 others [2017] eKLR that specified that judges should only hear cases that relate to the courts where they sit and this is what confers jurisdiction.
“The appellant is now before us in a second appeal. However, it is within our knowledge that S. Okong’o, J, is a Judge in the Land and Environment Court (ELC) which is a specialized court dealing with land and environment matters. In accordance with the decision of the Supreme Court in Republic -vs- Karisa Chengo & 2 others [2017] eKLR, the learned Judge had no jurisdiction to deal with the appellant’s first appeal it being a criminal appeal which is the preserve of the High Court,” the decision April 18 dated said.
As a recourse, the judges said that the proceedings and the decisions of the High Court would be annulled and the file returned to the court so that the first appeal be decided afresh.
“In the circumstances, the judgment and proceedings in the High Court relating to the appellant’s first appeal were a nullity,” the decision said.
It added that:
“We therefore hereby remit the matter back to the High Court for rehearing of the appeal before a Judge of the High Court with appropriate jurisdiction.”
The convict will be required to present herself before the Kisii High Court deputy registrar within two weeks from the day of the judgement so that the hearing date for the appeal can be heard.
“The appellant shall appear before the Deputy Registrar of the High Court in Kisii within two weeks from today for a hearing date on the first appeal to be fixed on priority.”