Can environment judge hear criminal cases?

FILE | PHOTO An inmate swears on the bible during a Moot court at the Kamiti Maximum Prison, Nairobi. Prisoners use these courts to prepare each other before their appearances in court. 

In Summary

• On October 4, 2013, the CJ, through a Gazette notice, directed all the judges of the High Court, Industrial Court and Environment and Land Court to preside over the pending criminal appeals from subordinate courts and consider reviews of sentences in order to decongest prisons.
• The lawyer argued that the appointment of a judge is based on his/her application for the job and undergoes vetting on the skills and thereafter recommended by the JSC for employment by the President.

By BENSON WAMBUGU benwambugu62@gmail.com

Can a judge designated in the Environment and Land Division or Industrial Court try cases of a criminal nature?

That is what a convict on death row for robbery with violence wanted the court to determine before his appeal is heard by the Land Divisional Judge, Isaac Angote.

Mr Justice Angote, together with Lady Justice Christine Meoli, had been picked by Chief Justice Willy Mutunga to hear and determine the appeal of Samson Matende who was sentenced to death by a magistrate four years ago.

On October 4, 2013, the CJ, through a Gazette notice, directed all the judges of the High Court, Industrial Court and Environment and Land Court to preside over the pending criminal appeals from subordinate courts and consider reviews of sentences in order to decongest prisons.

It is that directive that compelled Matende to challenge the jurisdiction of the court as constituted by the CJ to hear his appeal.

He argued that Justice Angote may not have the necessary legal capacity to try his criminal case.

Through his lawyer Ole Kina Tukero, Matende argued that to determine whether a judge in the Land Division and the Industrial Court could hear criminal appeals, a purposeful and harmonised approach must be applied to give effect to the intention of the specific pieces of legislation.

“Mr Mutunga cannot pupport to confer jurisdiction upon any officer of the Judiciary as he did through a Gazette notice,” submitted Ole Kina.

The lawyer told Justice Angote and Lady Justice Meoli that a Land Division judge cannot exercise jurisdiction conferred by Article 165 of the Constitution and section 347 of the Criminal Procedure Code upon the High Court judge.

Mr Ole Kina said the jurisdiction of Justice Angote was derived from the Constitution and the Environment and Land Court Act having been employed as such by the Judicial Service Commission (JSC).

He further submitted that the judges who applied for positions in Environment and Land Court were employed and sworn to office pursuant to the provisions of Article 162(2) of the Constitution and Environment and Land Act.

Therefore, Mr Ole Kina maintained, the CJ could not move the judges to the High Court because that would be in violation of sections 43, 44 and 45 of the Interpretations and General Provision Act.

The lawyer argued that the appointment of a judge is based on his/her application for the job and undergoes vetting on the skills and thereafter recommended by the JSC for employment by the President.

“Unless specifically appointed by the President to sit in any of those courts, the proceedings and judgments of such a court would be a nullity,” said Ole Kina, adding that the jurisdiction of the judges in the Land Division and Industrial Court to hear criminal appeals was an illegality.

The DPP dismissed Matende’s arguments, saying the Judicature Act does not create special judges and their distinction cannot be relevant in determining the jurisdiction conferred on the High Court.

LEGAL DISTINCTION

On November 27, the judges turned down the application, saying the court was properly constituted to hear and determine the criminal appeal before it. The judges held the view that a judge in the Environment and Land or Industrial Court could hear and determine matters reserved for the High Court as the courts are of the same status.

They ruled that the Constitution has not distinguished how a judge of the High Court and the two specialised courts should be appointed “for one to argue that a judge serving in a specialised court is cannot handle matters preserved for the High Court”.

The judges said that upon the promulgation of the new Constitution, the position of the High Court enjoying unlimited original jurisdiction in civil and criminal matters changed significantly, allowing for the establishment, by legislation, of Employment, Land and Environment courts with a status equivalent to that of the High Court.