GABRIEL KARIAMBURI MURAYA v REPUBLIC [1995] KECA 52 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether alleged discrepancies and contradictions in prosecution evidence warranted interference by this second appellate court
- 2.Whether the severity of the sentence could be inquired into on a second appeal
Key legal issues
#Scope of a second appeal under section 361(1) of the Criminal Procedure Code
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.
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.
Alleged discrepancies and contradictions in prosecution evidence
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#Interference with conviction on grounds of alleged discrepancies in prosecution evidence
No discrepancy justified inquiry into facts; the facts justified the conviction
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
Costs
No costs order 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.
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.
In the result this appeal has no merit and we order it to be dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.