Supreme Court has inherent Jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal
Republic v Ahmad Abolfathi Mohammed and another [2018] eKLR
Supreme Court of Kenya
Criminal Application No 2 of 2018
D K Maraga, CJ & President; M K Ibrahim; J B Ojwang; S C Wanjala; & S N Ndungu, SCJJ
September 28, 2018
Reported by Ian Kiptoo
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Jurisdiction-jurisdiction of the Supreme Court-Inherent jurisdiction of the Supreme Court-jurisdiction to stay an order of acquittal of an accused person-where no provision in statute or Constitution provided for such jurisdiction-principles applicable in exercising discretion to stay acquittal of an accused person-whether the Supreme Court had inherent jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal-what were the applicable principles/guidelines a court should use in exercising its discretion to stay an acquittal of an accused person-Constitution of Kenya, 2010, articles 20 (3), 50 (1), 163 (4) (b), and 259; Criminal Procedure Code, section 348A; Supreme Court Rules, 2012, rule 24
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-freedom from discrimination and right to fair trial-where an aggrieved party was denied certification that a matter was of general public importance-whether denying an aggrieved party on appeal, certification that a matter was of general public interest, was a violation of a party’s right to fair hearing and freedom from discrimination-Constitution of Kenya, 2010, articles 27, 50, 163(4) (b), 163(5), and 259 (1)
Constitutional Law-fundamental rights and freedoms-right to fair hearing-where an appeal sought to stay the acquittal of an accused person-whether an appeal to a higher court of appeal, against the acquittal of an accused, violated an accused person’s right not to be tried for an offence he/she had previously been acquitted or convicted-Constitution of Kenya, 2010, articles 50 (2) (o)
Brief facts:
The Respondents, Iranian nationals, were charged with and convicted for the offences of being in possession of explosives contrary to section 29 of the Explosives Act; committing an act intended to cause grievous bodily harm contrary to section 231 of the Penal Code; and preparing to commit a felony contrary to section 308(1) of the Penal Code. They were each sentenced to life imprisonment on count 1, 10 years’ imprisonment on count 2 and 15 years’ imprisonment on count 3. The sentences were ordered to run concurrently.
The Respondents’ appeal to the High Court against conviction was dismissed. The one against sentence was, however, partially allowed with the result that the sentences imposed upon them by the Trial Court were set aside and in lieu thereof they were each sentenced to a consolidated term of 15 years’ imprisonment. Their second appeal to the Court of Appeal was allowed; their convictions were quashed and the sentences imposed on them were set aside and the Court of Appeal ordered their immediate repatriation.
Its application for certification having been dismissed by the Appellate Court, the State applied to the Court to review and set aside the said decision and in its stead to find that the State’s intended appeal raised matters of general public importance and grant it leave to appeal to the Court. The State wished to appeal to the Instant Court based on 5 main grounds that:
- The Applicant had an arguable appeal with high chances of success;
- The intended appeal involved a matter of general public importance as it touched on national security;
- The net effect of the judgment of the Court of Appeal would affect the investigations of all criminal cases and transcended the particular case;
- The intended appeal had a significant bearing on the public interest with respect to criminal matters which the Court of Appeal in its ruling of February 16, 2018 failed to consider; and
- That the intended appeal would be rendered nugatory if stay was not granted and the Respondents left the jurisdiction of the Court.
- Whether denying an aggrieved party on appeal, certification that a matter was of general public interest, was a violation of a party’s right to fair hearing and freedom from discrimination.
- Whether the Supreme Court had inherent jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal.
- Whether an appeal to a higher court of appeal, against the acquittal of an accused, violated an accused person’s right not to be tried for an offence he/she had previously been acquitted or convicted.
- What were the applicable principles/guidelines a court should use in exercising it discretion to stay an acquittal of an accused person?
Relevant Provisions of the Law
Criminal Procedure Code
Section 348A
(1)When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.
(2)If the appeal under subsection (1) is successful, the High Court or the Court of Appeal, as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.
Supreme Court Rules, 2012
Rule 24(2)
“[W]here the Court of Appeal has certified or has declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days
Indian Code of Criminal Procedure, 1973
Section 390
“When an appeal is presented under s. 411A subsection (2) or section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.”
Held:
- In interpreting the review jurisdiction in article 163(5) of the Constitution of Kenya, 2010(Constitution), regard should be had to the dictum of harmonization under article 259(1) of the Constitution and giving the term certifies or certification in article 163(4) (b) of the Constitution a broad interpretation. In that regard therefore, and on the facts of the case, the principles of non-discrimination under article 27 and fair hearing under article 50 should never be lost sight of. Therefore, to deny a party aggrieved by a refusal to grant certification that a matter was one of general public importance was discriminatory and contrary to article 27 and a denial of the right to a fair hearing under article 50(1) of the Constitution.
- Article 163(5) of the Constitution vested the Supreme Court with jurisdiction to review the Court of Appeal’s decision to grant or decline certification that a matter was one of general public importance therefore affirming the words of rule 24(2) of the Supreme Court Rules, 2012 that where the Court of Appeal had certified or had declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.
- The State’s wishes to challenge the Appellate Court’s decision allowing the Respondents’ appeal and acquitting them of all the charges they faced thus setting them free could only be availed that opportunity if, as required by article 163(4)(b) of the Constitution, it was granted leave to appeal after it had demonstrated that the issue to be canvassed on appeal was a matter of general public importance the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest.
- It was a matter of common notoriety that Kenya had, in the past suffered several horrendous terrorist attacks and as a result lost hundreds of innocent Kenyans and thousands were left maimed and seriously injured with personal disabilities and permanent scars. Due to the nature of the terrorist attacks, the Kenyan public had for a time lived in fear and felt insecurity in their own motherland. The crime of terrorism undermined the national security as well as the peace and tranquility of the people of Kenya and all others who lived within its borders. Consequently, and on the principles the Court set out in various cases, as well as rule 24(2) of the Supreme Court Rule 2012, the Applicant had made out a case for review of the Appellate Court’s orders denying the Applicant leave to appeal to the Court.
- The Court of Appeal erred in its observation that it was not aware of any law that granted it jurisdiction to stay an acquittal of an accused person so that he continued to be held in custody as a suspect awaiting a possible finding of guilt by the Supreme Court. In addition, the Appellate Court erred when it held that the inherent jurisdiction of the Court could not be the basis for granting the orders of stay that had no constitutional or statutory basis but instead negated the constitutional presumption of innocence until the contrary was proved.
- Unlike in the Indian cases of Express of India v Mangu & Others, (1880) ILR 2 ALL 342 and The State of UP v Poosu & Another, 1976 3 SCC 1 as well as the Malaysian case of Prosecutor v Bird Dominic Jude, Criminal Appeal No. W-05-216-09/2012, where there were express statutory provisions granting the Court discretionary authority to arrest and detain a respondent pending the hearing and determination of the State’s appeal against his acquittal, there was no express statutory provision in Kenyan statutes granting the Court jurisdiction to stay an acquittal. That did not mean the Kenyan appellate courts were helpless in such matters.
- It was not in dispute that section 348A of the Criminal Procedure Code, introduced by the Security Law (Amendment) Act No. 19 of 2014 granted the Director of Public Prosecutions (DPP) the right of appeal on both facts and law against the acquittal of an accused person. Although there was no mention of the Supreme Court in section 348A of the Criminal Procedure Code, it was not in dispute that article 163(3)(b) of the Constitution granted the Supreme Court jurisdiction to hear and determine appeals from [inter alia] the Court of Appeal which met the criteria of matters involving the interpretation or application of the Constitution and those certified by either the Court of Appeal or Supreme Court to be of general public importance as stated in clause (4) of article 163. Therefore in the instant matter, the State’s intended appeal was properly grounded on the Constitution.
- In exercise of its jurisdiction, article 259 of the Constitution required the Supreme Court, like other courts and tribunals, to interpret the Constitution in a manner that—promoted its purposes, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. In the development of the law, article 20(3) of the Constitution required that in applying a provision of the Bill of Rights, a court shall-develop the law to the extent that it did not give effect to a right or fundamental freedom; and adopted the interpretation that most favoured the enforcement of a right or fundamental freedom.
- What Clause (a) of article 20(3) required the Court to do, in what appeared to be in mandatory terms, was, under its inherent jurisdiction, to develop the law where there was a lacuna especially in applying the provisions of the Bill of Rights to ensure that such provisions were not rendered ineffectual. One of the rights and fundamental freedoms in the Bill of Rights was the right to a fair trial under article 50(1) of the Constitution.
- Justice cut both ways. In both civil and criminal cases, the Court had to be fair to all the parties before it. It followed that in the instant criminal matter, the right to a fair trial under article 50(1) of the Constitution demanded of the Court even-handed treatment of both the Applicant and the Respondents. The Applicant had been allowed to come before the Court under article 163(4) (b) as read with section 348A of the Criminal Procedure Code. The Court could not turn away the Respondents’ contention that there was no provision in law bestowing the Court with jurisdiction to grant stay of an acquittal order and hold the acquitted person(s) in custody pending the hearing of the appeal against their acquittal. To do that would with respect, be a dereliction of the Court’s constitutional obligation under articles 20, 50(1), 163(3) (b) and 259 of the Constitution.
- As a matter of public policy, the Court, and indeed any other court, could not and should not exercise its jurisdiction or act in vain. To enable it stamp its authority and deliver on its constitutional mandate in any matter properly before it and to uphold both parties’ right to a fair trial under article 50(1) as well as ensure that its processes were not abused, scuttled or negated by any mischievous or nefarious conduct, the Court had inherent jurisdiction, not expressly conferred by the Constitution or any statute, but accruing to it by its existential nature as a court of law duly constituted to administer justice, to issue any orders to ensure that the ends of justice in any particular case were met. In the circumstances, the Court had inherent jurisdiction to grant the orders of stay sought in the Application if merited.
- Invoking a court’s inherent jurisdiction was not a novel proposition the Court was plucking out of the air. By its very nature, the inherent jurisdiction of the Court was neither conferred by statute, nor by any external authority or process. Rather, it emanated from the Court’s broader and primary power to administer justice. In the major jurisdictions across the world, in cases of lacunae in the law, inherent powers of the Court had been recognized and invoked in contexts where it was deemed necessary to serve the ends of justice.
- In India, section 390 of the Indian Code of Criminal Procedure, 1973 granted the High Court jurisdiction to stay an acquittal. However, the Indian Supreme Court, which had no such express statutory jurisdiction held in the case of The State of UP v Poosu & Another, 1976 3 SCC 1 that it had inherent jurisdiction drawn directly from the Constitution to stay an acquittal and even remand in custody the person whose acquittal was being challenged.
- The Court’s inherent power was not unlimited. Where there was a clear and explicit rule in statute, no such power could be invoked against a clear expression in the law or statute. The Indian Supreme Court in the 1968 case of Padem Sen v State of UP AIR 1961, SC 218 recognized that principle. Referring to a provision in section 151 of the Indian Penal Code, the Court noted that, it was well recognized that the inherent power was not to be exercised in a manner which would be contrary to or different from the procedure expressly provided in the Code.
- Even without a specific statutory provision like section 390 of the Indian Code of Criminal Procedure, 1993 or section 56A the Malaysian Courts of Judicature Act, 1964. On the provisions of section 24 of the Supreme Court Act, the Court had inherent jurisdiction to grant interlocutory orders not only to preserve the subject matter of an appeal but also to ensure that an appeal or intended appeal was not rendered nugatory thus defeating the course of justice.
- An appeal to a higher court against acquittal of an accused person did not constitute a new or different and distinct trial of the accused person for the offence in respect of which he was acquitted and therefore did not violate article 50(2) (o) of the Constitution. A conviction or acquittal did not mark the end of one trial and an appeal against conviction or acquittal the beginning of another trial. An appeal was a continuation of the same trial in a higher court; a different stage of the same trial for the purposes of correction of errors, if any, and ensuring that there was no miscarriage of justice.
- It would throw out of the window the objective of a fair trial under article 50(1) of the Constitution if the Court were to concur with the Appellate Court that courts in the country had no jurisdiction to stay an order of acquittal and remand in custody a respondent whose acquittal was being challenged on appeal. However, an application for stay of an acquittal and remand of an acquitted person, whose innocence had been declared by a court of competent jurisdiction, was a very serious matter as it sought to restrict such acquitted person’s constitutional right to freedom of movement. It was therefore a matter that required to be considered with great circumspection. Orders of stay and remand of an accused-respondent should sparingly be granted. The prosecution had to demonstrate to the Court the risk of flight likely to render the appeal or intended appeal an academic exercise if the Respondent was not remanded.
- An appellate court was not totally handicapped. It may where satisfied grant an order staying an acquittal pending the hearing and determination of the appeal by the State. That power may be statutory provided for, like the case of Malaysia, or drawn from the Constitution, like the case of India. Kenya had no legal provision either in the Constitution or statute that directly spoke to the power of an appellate Court, be it the High Court, Court of Appeal or Supreme Court, to grant orders of committal to prison of an acquitted person pending the hearing of the appeal. However, the Supreme Court was not handicapped as to be totally curtailed from granting such an order.
- Time was ripe for the legislative arm of the government, Parliament, to consider such legislation. Parliament, the Attorney General, Director of Public Prosecution and other stakeholders in the justice system, including the Law Reform Commission and the Law Society of Kenya were called upon to consider such a legislative framework.
- Before the legislative framework was enacted, the Supreme Court in exercise of its inherent jurisdiction and unfettered jurisdiction as pronounced by rule 3 of the Supreme Court Rules, 2012 had the power to grant an order staying an acquittal pending the hearing of an appeal filed by the State, through the office of the Director of Public Prosecution. That jurisdiction was discretionary and had to be exercised judiciously and not whimsically. That called for setting of guidelines/principles on how the Court(s) exercised that jurisdiction.
- Drawing from the comparative jurisprudence, the following principles were delimited for consideration in an application for stay of acquittal pending the hearing and determination of an appeal:
- The discretion to grant stay of acquittal should be exercised sparingly;
- The discretion shall be exercised judiciously and not whimsically;
- The accused person had been found not guilty and acquitted, hence there was a presumption of innocence in favour of the accused;
- It was in the interest of the Public, the State and the Court before which the appeal had been filed to preserve the integrity of the appeal;
- It was not automatic that upon the State’s filing of an appeal stay would be granted. The onus was on the State (Director of Public Prosecution) to lay a basis to the satisfaction of the Court as to the existence of special circumstances that militated against the release of the acquitted person;
- In considering what amounted to special circumstances, the Court shall consider the following:
- The nature and seriousness of the offence;
- Whether the absence or non-attendance of the accused person at the hearing of the appeal would render it nugatory;
- The probability of accused absconding court if released, was he/she a flight risk;
- A balance had to be struck between the right to individual liberty of the Accused and the interest of the public;
- The length of time which was likely to take for the appeal to be heard.
- The Court shall expedite the hearing and determination of the appeal.
- In the instant case, the Respondents were foreigners. They were Iranians. Kenya had no extradition treaty with Iran. Therefore, if repatriated, it would be difficult to secure the Respondents’ presence in Kenya to complete their imprisonment term if the State’s appeal was allowed.
Application allowed.
Orders
- The Application for stay of execution of the Respondents’ acquittal and repatriation was allowed. Article 163(5) of the Constitution vested the Court with jurisdiction to review the Appellate Court’s denial to grant certification under article 163(4)(b) and the Applicant had made out a case for certification.
- The Court reviewed and set aside the Appellate Court’s decision of February 16, 2018 declining to grant certification that the matter was of general public importance and denying the Applicant leave to appeal to the Court against the Court of Appeal’s decision of January 26, 2018 which allowed the Respondents’ appeal, quashed their conviction and ordered their repatriation.
- Substitution of the denial of certification with an order granting the Applicant leave to appeal.
- That the principle of harmonization under article 259 of the Constitution and the spirit of the right to a fair trial under article 50(1) of the Constitution read with section 348A of the Criminal Procedure Code bestowed upon the Court inherent jurisdiction to stay the acquittal of a respondent pending the determination of the appeal challenging that acquittal.
- Pending the filing, hearing and final determination of the Applicant’s intended appeal, the Respondents’ acquittal by the Appellate Court was stayed and the Respondents would be held in police custody.
- The Applicant would file and serve its appeal within thirty days. Once filed the Appeal would be heard on priority basis.
- It was directed that copies of the instant Judgment delivered be transmitted to the said stakeholders for their noting and necessary action.