Time to review the appellate system

By Pravin Bowry

Kenya: The court system in the country is structured on the basis that magistrates and judges often err on matters of their apprehension of facts or even law.

In all courts - including the decisions of over eighty or so Tribunals in the country - there are provisions for lodging appeals, essentially a legal process of checks and balances where a higher court reconsiders and re-evaluates the decisions of the earlier court.

The reason for all the courts and tribunals making copious notes of proceedings in long hand is to facilitate the appeal process and these proceedings form the basis of the process of lodging appeals. Our courts are said to be Courts of Record meaning that the acts and judicial proceedings are enrolled for a perpetual memory and testimony.

The appellate system mainly is governed now by the Constitution, the Supreme Court Act, the Appellate Jurisdiction Act, the Civil Procedure Act and Criminal Procedure Act, and many other Acts which provide for judicial or quasi judicial decisions. 

Elaborate and intricate Rules and Regulations under various Acts govern the right to appeal.

All appeals usually proceed by way of review.  In other words, the appeal court scrutinises the findings of fact and the reasoning process of the lower court and determines whether the lower court erred or made an error.

The principle of decision making of the appeal courts is based on the acceptance of primary facts especially when these facts are based upon oral evidence.

 The appellate courts are reluctant to interfere with inferences made from these facts in as much as there is reluctance to interfere in matters of discretion of courts.

In Kenya, appeals by way of re-hearing the whole matter “in the interests of justice” are unknown.

New evidence

The appellate courts in rare cases have the power to receive evidence which was not available before the court below. There is no provision for revisiting cases on the concept of possible miscarriages of justice and to increase public confidence in the criminal justice system.

Criminal appeals from subordinate criminal courts can be made to the High Court on grounds based on facts, or law or on the gravity of sentence.

The Prosecution also has a right of appeal from an acquittal by a subordinate Court or an order refusing to admit or dismissing a charge by a subordinate court.

Our Criminal Procedure Code, however, still retains archaic and antithetical provisions dating back to 1967, which allow summary dismissal of appeals by the High Court. An appeal from a decision which was itself made on appeal is known as “second appeal”.  A second appeal is made to the Court of Appeal and can be made only on matters of law. Matters of fact can be just as important and crucial in determining the innocence or guilt of a person. Facts may also play a part in ensuring that justice is served but they are not considered. A time has now come when second appeals should be allowed on all relevant grounds without limitations.

A first appeal from a decision of the High Court may be on grounds of both law and facts, and only with leave of the Court of Appeal can the appeal be against the sentence.

There is no right for a second appeal, from the Court of Appeal to the Supreme Court and this is unfair and must be remedied.

The prosecution also has a right of appeal to the Court of Appeal on grounds of points of law of exceptional public importance.

No automatic rights

There are no third appeals allowed from the criminal court decisions. Even with the Supreme Court as the highest court of the land there are no automatic rights for an appeal to the Supreme Court. For an appeal to be heard by the Supreme Court a two-pronged test must be satisfied. First, the appeal must involve a matter of general public importance and, secondly, a substantial miscarriage of justice must have occurred or is likely occur if the appeal is not heard.

In serious matters where accused persons are convicted and sentenced to life imprisonment or the death penalty, the Supreme Court must be given a right to have the final word.

Appeals from decisions of most tribunals in the country lie with the High Court. Why should there be no second appeals?

Civil cases also suffer the same fate when it comes to appeals to the Supreme Court as they also must satisfy the two requirements provided for under the Supreme Court Act.

The process of appeals is even in the era of computers and information technology, a long one. Convicted persons have been acquitted for good reason after decades of being in prison.

The process of appeal is slow, cumbersome and one with historical legal obstacles where the process is made difficult and technical.

With the increase in the number of judges, magistrates and establishment of tribunals, the appeals process in all courts is being overloaded and becoming even slower.

The whole appeal process needs to be reviewed.

 The writer is an Adovocate of the High Court of Kenya

— [email protected]