Anwar Kipngetich v Republic [1985] KECA 54 (KLR)

Relying on Pandya v R and Shantilal M Ruwala v R, the court restated that a first appeal is by way of rehearing, requiring the appellate court's own consideration of the evidence as a whole. On second appeal, whether the first appellate court applied these principles is a question of law. The judge here considered only the prosecution case on recent possession, overlooked the circumstantial nature of the evidence and never addressed the defence.

The court, citing Rex v Kipkering Arap Koske and Musoke v R, held the judge upheld the conviction solely on alleged recent possession without analysing whether the circumstances excluded any other reasonable inference. The judge also failed to re-evaluate the evidence of the Jogoo Road episode and the alleged change of vehicles, which were central planks of the prosecution case.

Citing Wibiro alias Musa v R and Okethi Okale v R, the court held that the judge's silence on the appellant's unsworn statement, and his acceptance of the prosecution case without weighing the defence, was worse than the error of considering the two cases separately. The failure to rehear the defence meant the appeal before the High Court was not properly heard.

Applying R v Vashanjee L Dossani, Braganza v R and other authorities, the court concluded this was a prime example of an appeal calling for a rehearing. The High Court appeal had not been heard properly, so the appropriate remedy was to set aside the judgment and list the appeal before a different judge, rather than to acquit.