Levy Masinde Omuse*
Introduction
The case of R v Karisa Chengo was an appeal by the Director of Public Prosecutions (DPP) arising from the judgment of the Court of Appeal sitting in Malindi.[1] This case stood the test of Kenya's judicial hierarchy having come all the way from the magistrate's court to the apex court of the land. The case raised substantial questions of law. Relevant to this discourse is the question, whether judges of the three courts of equal status – the high court, the environment and land court, and the employment and labour relations court – have jurisdiction to sit in any or all of the three courts.
The Supreme Court, in exercising its appellate power, shared in the sentiments of the Court of Appeal that when a judge is appointed to a specific superior court, that appointment itself ousts their jurisdiction to hear matters within the reserve of other courts. The court thus held that the High Court's decision to affirm the respondents' conviction was a nullity.[2]
Against this backdrop, this paper argues that this jurisprudence created a bad law with respect to jurisdiction and competence of judges of the courts of equal status. The paper advances a bifurcated argument: first, as courts of equal status, the judges have the same qualification and hence while there is a distinct cadre of courts, there is no distinct cadre of judges. Second, specialisation does not limit competence. This will in-turn show that the Supreme Court's reasoning was based on an inaccurate interpretation of constitutional provisions and pertinent legal principles.
Background
The facts surrounding this appeal are that the respondents were charged in the Magistrates' Court, with the offenses of robbery with violence contrary to Section 292(2) of the Penal Code (Chapter 63) with the third respondent having an additional charge of rape contrary to Section 3(1)(a) of the Sexual Offences Act, 2006. After being put on full trial, they were all convicted and handed death sentences.
The respondents appealed against their convictions and sentences, to the High Court at Malindi. The hearing of the said appeal coincided with the 'judicial service week' which ran from 14 to 18 October 2013. Judicial service week was an initiative by Chief Justice Emeritus Prof Willy Mutunga aimed at reducing the backlog of criminal appeals in the High Court. The week was thus dedicated to hearing criminal appeals in the High Court.[3]
Following this, environment and land court and employment and labour relations court judges were empanelled with high court judges to hear criminal appeals during the week. Hon Justice Christine Wanjiku Meoli of the high court of Malindi, empanelled with Hon Justice Oscar Amugo Angote of the environment and land court, heard and dismissed the respondents' appeal. Dissatisfied with that decision, the respondents preferred a second appeal to the Court of Appeal. Among other grounds of appeal, the respondents' contended that the decision of the High Court was null and void for want of jurisdiction. The appeal was subsequently allowed.[4] Aggrieved by the decision of the appellate court, the DPP lodged an appeal to the Supreme Court .
In disposing off the appeal, the Supreme Court concurred with the Court of Appeal that the High Court bench, which affirmed the respondents' conviction, was unconstitutionally empanelled. Accordingly, all that was done by the said bench was a nullity.[5]
Supreme Court's analysis on the question of jurisdiction of judges of the courts of equal status
The Supreme Court held, and I fully concur, that for the purposes of specialisation, Kenyans thought it wise to have two specialised courts with the same status as the high court. The Supreme Court further clarified that same status should not be construed to mean same jurisdiction. It follows therefore, the three courts are different, with distinct jurisdictions.[6]
In addressing its mind on the most contentious issue – the question of competence of judges of the three courts – the Supreme Court signalled that establishment of different courts came with establishment of different cadres of judges. As such, just as each of the three courts is precluded from entertaining matters within the reserve of the other courts, then a judge of the environment and land court or employment and labour relations court cannot hear criminal appeals.
In arriving at its conclusion, the Supreme Court reasoned that judges are not appointed generally as superior court judges. Rather, they are appointed to a specific court. The Supreme Court further observed that even the oath of office of judges are very specific to the court that the judge is appointed to. Accordingly, judges are precluded from hearing matters outside the jurisdiction of the courts to which they are appointed.[7] This is where this matter gets into troubled waters.
With great respect to the Supreme Court, it is my humble view that its reasoning is not legally tenable. My point of departure from the Supreme Court's reasoning is that, while the Constitution of Kenya (2010) envisaged a distinct court of equal footing, it did not envisage a different cadre of judges. The Supreme Court erred in failing to consider several factors, which, had they been considered, would have compelled a different verdict. First, that the judges of the environment and land court and employment and labour relations court are competent to hear and determine matters within the jurisdiction of the high court; and second, that judicial specialisation does not limit competence.
Assessing judicial competence of judges of the courts of equal status
The qualification of judges of the courts of equal status are the same to the extent that judges of these courts are appointed from persons who have at least 10 years of experience as superior court judges or magistrates; or at least 10 years' experience as distinguished academics or legal practitioners or such experience in other relevant legal field; or in the alternative, possess both of the above named qualifications in aggregate of 10 years.[8] However, qualifications of judges of the Environment and Land Court have an additional criteria which requires the appointees to have some experience in land or environment matters.[9]
It follows therefore, through a reading of Articles 162(2), Article 166(5) of the Constitution of Kenya (2010) and Section 7(1) of the Environment and Land Court Act, 2011, a judge of the environment and land court is as competent and qualified as a judge of the high court based on their qualification requirements and process of selection by the Judicial Service Commission.
In addition, Section 13(3) of the Environment and Land Court Act, 2011 is relevant in understanding the competence and qualification of a judge of the environment and land court. It provides that:
'Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution'.[10]
This therefore begs the question; how then should these provisions be interpreted? Fortunately for us, this question was precisely answered by the Supreme Court in its advisory opinion, In the matter of National Land Commission. It remarked that the Constitution of Kenya (2010) is to be interpreted in a holistic manner that entails reading it alongside other provisions.[11] It further emphasised that statutes should be interpreted purposively in order to bring out the purpose of the provision as this mode of interpretation looks into the context within which a provision was arrived at.[12] This rule of interpretation coincides with the cardinal rule of constitutional interpretation which distils from Article 259(3) of the Constitution of Kenya (2010) – the law is always speaking.[13]
To this point, two things have been established. First, it was clear intention of the drafters of the Constitution of Kenya, 2010 to have the Environment and Land court at equal footing with the High Court. Second, a judge of the environment and land court is as competent as a judge of the high court. This is the context under which Section 13(3) of the Environment and Land Court Act, 2011 operates.
Therefore, a purposive interpretation of Section 13(3) of the Environment and Land Court Act, 2011 will lead us to an inescapable conclusion that, though in narrow terms, the Act recognises that a judge of the environment and land court is capable of determining questions of violations of fundamental rights and freedoms, which ordinarily is within the purview of the high court judge.[14] Consequently, the token that allows environment and land court judges to determine claims of fundamental rights and freedoms occurring in environment and land matters, is the same token that supports the position that a judge of the environment and land court has capacity to apply himself as though he is sitting as a high court judge.
Therefore, it goes without saying that while the law vehemently decries matters within the jurisdiction of one court[15] to be filed in another court, the same framework allows judges of specialised courts to apply themselves on matters which are ordinarily within the jurisdiction of the high court.[16] This, in essence, means that the drafters of the Constitution of Kenya (2010) had clear intentions of establishing, not a distinct cadre of judges, but a distinct cadre of courts.[17]
Specialisation does not limit competence
The environment and land court and employment and labour relations court were established for the purposes of specialisation and expertise in the field of land and environment and employment respectively. Although specialised, it was the express intention of the drafters of the Constitution of Kenya (2010) to have these courts on equal footing with the high court.[18]
On the interplay between specialisation and competence, I concur with Hon Justice JO Abuodha's supposition that there is a distinction between a judge and the court over which such judge presides, in that, a judge can be isolated from the court which he or she has been appointed to.[19]
What this means is that jurisdictional limits of the specialised courts should be viewed as applying to a specific court as an institution and not extending to the individual capacity of the judge presiding over that court. In other words, the individual competence of a judge of a specialised court has nothing to do with the jurisdiction vested on the court over which he or she presides. This is to mean that jurisdictional bounds of the specialised courts do not apply to judges of those courts.[20]
The argument, that specialisation does not limit competence, has gained credence in the South African judicial system. In South Africa, judges of specialised courts can be appointed to preside over matters before the high court for the purposes of judicial efficiency. Notably, Judge Basheer Waglay was appointed as judge of the labour court in 1999.[21] However, during his tenure as a labour court judge, he was also involved in several cases within the high court, for example the Jordan – Leigh murder trial in 2007.[22] The import of this is that much as judges can be appointed and designated to a specific court, they still wield the requisite capacity to preside over matters within the jurisdiction of other Courts of equal status.
Accordingly, the Supreme Court's view that once a judge has been appointed to the environment and labour court, that appointment ousts the jurisdiction of that judge from hearing matters within the jurisdiction of the High Court, is juridically inconceivable. The Supreme Court's interpretation would be viable if the environment and labour court and the high court were courts of different status, or a judge of the high court, without sufficient expertise on matters land and environment, presides over matters within the reserve of the environment and land court.
Conclusion
In sum, the establishment of specialised courts alongside the high court was a deliberate and concerted step towards enhancing access to justice by ensuring efficient and timely resolution of disputes. While the courts are defined within clear jurisdictional bounds, their equal status underscores the drafters' intent to allow flexibility in judicial capacity where necessary. This connotes that judicial specialisation complements, rather than restricts, individual jurisdiction of judges. Construing it otherwise would be parallel to the letter and spirit of the Constitution.
* Final year law student at Kabarak Law School. Masinde has a keen interest in Constitutional law, Public International Law, International Trade Law and Human Rights Law. The author is passionate in Moot Court and leadership. This piece is inspired by his participation in the Supreme Court @12 Moot Court Competition 2024. The author therefore dedicates this work to his teammates: Tracy Jerop and Elvis Soita; and coaches: Sam Muchiri and Ann Kariuki. The author can be reached through: This email address is being protected from spambots. You need JavaScript enabled to view it..
[1] Republic v Karisa Chengo and 2 others, Petition 5 of 2015, Judgement of the Supreme Court at Nairobi, 26 May 2017, [eKLR]; Karisa Chengo and 2 others v Republic, Criminal Appeal 44, 45 and 76 of 2014, Judgement of the Court of Appeal at Malindi, 8 May 2015, [eKLR].
[2] R v Karisa Chengo (Supreme Court judgement) paras 79-80.
[3] R v Karisa Chengo, (Supreme Court judgement) para 3.
[4] Karisa Chengo and 2 others v Republic (Court of Appeal judgement) page 46.
[5] R v Karisa Chengo, (Supreme Court judgement) para 80.
[6] R v Karisa Chengo, (Supreme Court judgement) para 52.
[7] R v Karisa Chengo, (Supreme Court judgement) para 78.
[8] Constitution of Kenya (2010), Article 166(2).
[9] Environment and Land Court Act (No 19 of 2011), Section 7.
[10] Environment and Land Court Act (No 19 of 2011), Section 13(3).
[11] In the matter of National Land Commission, Reference No 2 of 2014, Advisory Opinion of the Supreme Court at Nairobi, 2 December 2015, [eKLR], para 281
[12] Gatirau Peter Munya v The Independent Electoral and Boundaries Commission and 2 others (Petition 2B of 2014), Judgment of the Supreme Court at Nairobi, 20 May 2014, [eKLR], para 167.
[13] Constitution of Kenya (2010), Article 259.
[14] Environment and Land Court Act (No 19 of 2011), Section 13(3).
[15] Constitution of Kenya (2010), Article 165(3)(b) on the High Court's jurisdiction over a denial, violation or infringement of, or threat to, rights or fundamental freedom.
[16] Here I refer to Environment and Land Court Act (No 19 of 2011), Section 13(3) affirming jurisdiction over 'applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment'.
[17] Final report of the committee of experts on constitutional review, 11 October 2010, 123.
[18] Constitution of Kenya (2010), Article 162(2).
[19] Abuodha Jorum Nelson, 'Judges and courts: Is there a distinction?', Kenya Law Blog, 1 June 2013 <https://kenyalaw.org/kenyalawblog/httpwww-kenyalaw-orgforump2568/> on 30 December 2024.
[20] Abuodha Jorum Nelson, 'Judges and courts: Is there a distinction?'.
[21] 'Names in the news' 18 Advocate, 1 April 2005 -<https://www.gcbsa.co.za/law-journals/2005/april/2005-april-vol018-no1-p26.pdf>- on 18 February 2025.
[22] Ben Maclennan, 'Baby Jordan murder trial: Rodrigues still awaits fate' Mail & Guardian, 3 May 2007 -< https://mg.co.za/article/2007-05-03-baby-jordan-murder-trial-rodrigues-still-awaits-fate/> on 19 February 2025.
