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Court of AppealDismissedCriminal Appeal 28 of 1994

GABRIEL KARIAMBURI MURAYA v REPUBLIC [1995] KECA 52 (KLR)

Court of Appeal of Kenya
31 March 1995
387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a second criminal appeal can only challenge points of law, not facts or sentence severity.

What this practically means

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Executive summary

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This is a second appeal against conviction for robbery under section 296(1) of the Penal Code, arising from a conviction recorded on 29 January 1988 and an unsuccessful first appeal to the High Court at Nairobi (Porter J. and Mbaluto J.), whose decision dated 1 October 1990 was under review. The appellant, through Mr. Wandugi, argued alleged major discrepancies and contradictions in the prosecution evidence and complained of an allegedly excessive sentence of ten years' imprisonment with ten strokes and five years of police supervision. The Court of Appeal (Gachuhi, Tunoi and Shah JJA, in a single judgment of the court) held that section 361(1) of the Criminal Procedure Code bars a second appeal on matters of fact and expressly treats the severity of a sentence as a matter of fact. Noting that both courts below had properly considered the issues of fact, including the discrepancies relied upon, the court found no discrepancy entitling it to inquire into the facts and held there were facts justifying the conviction. The appeal was dismissed in its entirety on 31 March 1995. The judgment reaffirms the well-established limitation that a second appeal lies only on matters of law and that sentence severity is not open to challenge on second appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether alleged discrepancies and contradictions in prosecution evidence warranted interference by this second appellate court
  2. 2.Whether the severity of the sentence could be inquired into on a second appeal

Key legal issues

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01

Scope of a second appeal under section 361(1) of the Criminal Procedure Code

Holding

A second appeal is confined to matters of law; the court cannot revisit findings of fact by the two courts below, nor the severity of a sentence, which is a matter of fact.

Reasoning

The court held that section 361(1) of the Criminal Procedure Code expressly bars a second appeal on matters of fact, and expressly treats the severity of a sentence as a matter of fact. Since both the trial magistrate and the first appellate judges had properly considered the evidence, including the alleged discrepancies, the Court of Appeal could not take a different view of the facts.

p. 1
02

Alleged discrepancies and contradictions in prosecution evidence

Holding

The discrepancies relied upon did not undermine the credibility of the prosecution witnesses and did not open a factual inquiry for the second appellate court.

Reasoning

Counsel relied on what he termed major discrepancies and contradictions in the prosecution evidence. The court noted that the first appellate judges had properly considered the discrepancies and concluded the whole of the evidence supported the two duty watchmen, leaving their credit unaffected. The court found no discrepancy justifying an inquiry into the facts, as the facts justified the conviction.

p. 2

Legal principles established

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  • On a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal cannot entertain matters of fact, including severity of sentence, which are matters of fact.

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.CR. A. No. 170 of 1988
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code

Relief refused

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Interference with conviction on grounds of alleged discrepancies in prosecution evidence

No discrepancy justified inquiry into facts; the facts justified the conviction

p. 2

Challenge to allegedly excessive sentence

Severity of sentence is a matter of fact, outside the scope of a second appeal under section 361(1) of the Criminal Procedure Code

p. 2

Costs

No costs order recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Section 361(1) of the Criminal Procedure Code makes it quite clear that this court shall not hear an appeal under that section on a matter of fact, and also that severity of sentence is a matter of fact.
p. 1Limits of a second appeal
In the result this appeal has no merit and we order it to be dismissed.
p. 2Final orders - dismissal of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "GABRIEL KARIAMBURI MURAYA v REPUBLIC [1995] KECA 52 (KLR)", Case Analysis (1995). Criminal Appeal 28 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/52/eng@1995-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.