IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJA.
CRIMINAL APPEAL NO. 32 OF 2014
BETWEEN
DAVID JUMA ATELU.................................APPELLANT
AND
REPUBLIC................................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Busia (Tuiyot, J.) dated 13th day of November, 2013 in HCCR NO. 60 OF 2013)
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JUDGMENT OF THE COURT
It is conceded by the Director Public Prosecutions that the appeal in the first appellate court was heard by two judges, one being a judge of the Environment and Land Court. It is also within our knowledge that Mr. Justice Kibunja who was one of the judges who heard the appeal in the first appellate court was appointed as a judge of the Environment and Land Court vide Gazette Notice No. 14346 of 5th October, 2012.
Pursuant to the Supreme Court decision in Republic v Karisa Chengo and 2 Others, Petition No. 5 of 2015, it is now settled that a judge of the Environment and Land Court has no jurisdiction to hear and determine a criminal appeal in the High Court. In the circumstances, the proceedings before the 1st appellate court were a nullity and there is no proper judgment upon which the appeal before us can be anchored. In the circumstances, we remit this matter back to the High Court for re-hearing of the first appeal before a Bench of the High Court made up of judges with competent jurisdiction.
This judgment is signed by only two (2) Judges under Rule 32(2).
DATED at Kisumu this 13th November, 2018
E. M. GITHINJI
....................................
JUDGE OF APPEAL
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.