Moses Njue Kamana v Republic [1987] KECA 34 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it will only reconsider questions of law in a second criminal appeal, leaving the appellant's theft conviction standing.
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 trial court committed any misdirection of law in holding that it was most probable that the blood stains on the polythene bags came from the appellant
- 2.Whether there was an error of law in the concurrent factual findings of the trial court and the High Court on the visual identification evidence and on the inference that the appellant acted in concert with the thief
Key legal issues
#Scope of a second appeal under section 361(1) of the Criminal Procedure Code
The right of appeal to the Court of Appeal in a criminal case is limited to questions of law only; grounds dressed as issues of law but in truth factual are not cognizable.
The court noted the appellant's six grounds were framed as questions of law but were in substance factual. Since the magistrate and the High Court (after independent evaluation) had made concurrent findings against the appellant on the facts, the second appeal could not reopen those findings unless an error of law was demonstrated.
The blood-group evidence and the alleged misdirection
It was a misdirection for the trial court to hold it was 'most probable' that the appellant left the blood stains, since others share his rare blood group and the Police Surgeon was not called to prove the chain of evidence; however, the misdirection did not vitiate the conviction.
Ground 4, a true question of law, was upheld as a misdirection: the blood match showed only that 7% of the population shared the group, and the Police Surgeon should have been called to establish the chain of evidence. Nonetheless, the court found ample visual identification evidence independent of the blood evidence sustaining the conviction.
Whether the remaining evidence sustained the conviction
Yes. The visual identification by Wilson Oketch, who knew the appellant and saw him clearly by electric light standing guard while goods were removed, together with the inference of concerted action, sustained the conviction notwithstanding the blood-evidence misdirection.
The identification witness knew the appellant beforehand, worked at the same place, and swore he saw him clearly by electric light; the appellant did not deny being on duty that night. His conduct in standing by while another made about 15 trips removing items justified the inference that he acted in concert with the person removing the goods.
Legal principles established
#- On a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal is confined to questions of law and will not disturb concurrent findings of fact by the trial court and the High Court absent an error of law.
- An appellate court will not disturb concurrent factual findings of the two courts below where no error of law is shown in either.
- Proof of a match between the blood group of stains at the scene and an accused's blood group does not, without evidence of the chain of evidence, establish that the blood came from the accused, since others share the same blood group.
Court orders
#- 1.The appeal to the Court of Appeal was dismissed
- 2.The conviction and sentence imposed by the resident magistrate, Makadara, as affirmed by the High Court, were left standing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal limited to questions of law)
Relief refused
#Setting aside of the conviction for stealing by a servant
There was no error of law; concurrent findings on the visual identification and the appellant's conduct in concert were sound; the blood-evidence misdirection was not fatal on the evidence as a whole
Costs
No costs order is recorded 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.
Under section 361(1) of the Criminal Procedure Code, his right of appeal to this court is limited to questions of law only.
The Police Surgeon should have been called to prove the chain of evidence and thus ensure that the blood stains on the polythene bags were of the same blood group as that of the appellant.
On the remaining evidence as a whole there was, as already indicated, ample visual evidence identification to sustain the conviction.
There is no showing that in arriving at this conclusion, the learned magistrate committed any error of law, nor did the High Court which affirmed his decision, violate any law. We think therefore that this appeal has no merit and ought to be dismissed.
We think therefore that this appeal has no merit and ought to be dismissed. We do so order.
Issues in the judgment
#The judgment records that the High Court appeal was decided on December 7, 1984, yet also describes that court as having decided the appeal after events relating to the trial and evidence; the timeline as printed should be verified against the official record.
The case number of the appeal before the Court of Appeal is not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Njue Kamana v Republic [1987] KECA 34 (KLR)", Case Analysis (1987). Criminal Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/34/eng@1987-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.