ERNEST IMBINDI vs REPUBLIC [1983] KECA 94 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that second appeals only address points of law and co-accused confessions can corroborate guilt.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants' grounds of appeal disclose points of law on a second appeal
- 2.Whether the repudiated confessions of the appellants were properly admitted and sufficiently corroborated
- 3.Whether confessions of co-accused may serve as corroboration
- 4.Whether the magistrate was right to reduce the charge from robbery with violence contrary to section 296(2) to simple robbery contrary to section 296(1)
- 5.Whether a single consolidated trial within a trial for multiple statements was proper
Key legal issues
#Whether the Court of Appeal could interfere with the sentences on second appeal
It could not; jurisdiction on second appeal is confined to points of law and does not extend to reviewing sentence for severity
The appeal was a second appeal confined to points of law. The High Court had confirmed the convictions on its own assessment of the evidence. Since the grounds of appeal disclosed no grounds of law, and sentence severity is not a point of law, the Court had no power to interfere, even though it observed the appellants were fortunate not to face the death penalty.
Whether co-accused confessions may corroborate
Yes; retracted and repudiated confessions of co-accused may be taken into account as corroboration against a co-accused tried for the same offence
Adopting the High Court's passage with approval, and citing Anyumba s/o Omolo v R and Tuwamoi v Uganda, the Court held that confessions sufficient to justify the makers' convictions may be taken into account against co-accused even if retracted, though other evidence against the co-accused is still required and corroboration merely tends to confirm other evidence.
Whether one consolidated trial within a trial for several impugned statements was proper
No; a separate trial within a trial is required for each impugned statement
The magistrate had held one trial within a trial for four accused in respect of statements made on three different dates because all were recorded by one prosecution witness. The High Court held this was wrong, and the Court of Appeal fully agreed, holding that each challenge is entitled to individual consideration. This criticism did not, however, lead to quashing the convictions.
Whether the magistrate was right to reduce the charge under section 296(2) to simple robbery under section 296(1)
No; the charge of robbery with violence was proved as laid and the magistrate should not have reduced it
The complainants were wounded and the accused were armed with offensive weapons, satisfying robbery with violence under section 296(2) of the Penal Code. The magistrate said he reduced the charge with reluctance but the reason was unclear. The Court of Appeal fully agreed with the High Court that the reduction should not have been made, noting the appellants were fortunate not to have been convicted of the capital offence.
Legal principles established
#- A second appeal to the Court of Appeal is confined to points of law; the Court has no jurisdiction to review sentence on the ground of severity
- Confessions of co-accused, even if retracted and repudiated, may be taken into account as corroboration against a co-accused tried for the same offence, provided they are confessions sufficient to justify the makers' convictions
- A separate trial within a trial must be held for each impugned statement; one consolidated trial within a trial for statements made by several accused on different dates is wrong
- Corroboration is no more than something tending to confirm other evidence
Court orders
#- 1.Ernest Imbindi's appeal against conviction and sentence dismissed
- 2.Adriano Achesa's appeal against conviction and sentence dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Kisumu High Court Criminal Appeal Nos 194 & 195 of 1980
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Penal Code/Criminal Procedure regime; a second appeal confined to points of law
Relief refused
#Review of sentence on grounds of severity
The Court of Appeal has no jurisdiction to review sentence on second appeal on grounds of severity
Ernest Imbindi's appeal against conviction and sentence
Grounds disclosed no points of law and conviction was confirmed by the High Court
Adriano Achesa's appeal against conviction and sentence
Grounds disclosed no points of law and the confessions were properly admitted and corroborated
Costs
No order as to costs appears in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ernest's appeal against conviction and sentence are dismissed.
Adriano's appeal are also dismissed.
This court has no jurisdiction to review a sentence on second appeal on the grounds of severity.
A separate trial within a trial should be held for each impugned statement. Each challenge is entitled to its individual consideration.
corroboration is no more than something tending to confirm other evidence.
Issues in the judgment
#The coram lists Trevelyan and Chesoni as 'JJ.A' though they were High Court judges deciding the first appeal; the judgment also describes them as 'Trevelyn and Chesoni JJ'
The record shows the appellants were convicted of robbery under Section 296(1) and the Court states Ernest was 'fortunate not to have been convicted of the offence with which he was charged', while elsewhere stating the 296(2) charge was proved as laid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ERNEST IMBINDI vs REPUBLIC [1983] KECA 94 (KLR)", Case Analysis (1983). Criminal Appeal No 61 of 1981. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/94/eng@1983-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.