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Court of AppealPartially AllowedCriminal Appeal No. 8 of 1993· [1996] KECA 112 (KLR)

John Njoroge Njenga & 2 others v Republic [1996] KECA 112 (KLR)

Court of Appeal
31 July 1996
JGJ. E. GicheruRKR. O. KwachASA. B. Shah
849 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will not re-examine facts on a second appeal, and appeals by prisoners who have already served their sentences simply die.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi by three persons convicted by an Acting Resident Magistrate at Kibera of robbery contrary to section 296(1) of the Penal Code, each sentenced to seven years' imprisonment, 10 strokes of the cane and five years' police supervision. Their first appeals to the High Court (Oguk, J.) were dismissed on conviction but allowed on sentence, the prison terms being reduced to five years and the strokes to three, with the police supervision order upheld. The facts concerned a robbery on 11th January 1991 at the Korogocho matatu terminus, where the gang demanded a purported terminus fee as a pretext, assaulted the owner, conductor and driver, and robbed the conductor of Shs.800/=. Before the Court of Appeal, the second and third appellants had already served their sentences, and their appeals were ordered to abate under rule 70(7) of the Court of Appeal Rules. The first appellant, appearing in person, challenged his identification by two witnesses. Holding that a second appeal raises only issues of law, the Court found a concurrent finding of proper and positive identification by the Magistrate and the Judge, based on credible evidence, in broad daylight and with the appellant well known to the witnesses. The appeal against conviction was dismissed, and the appeal against sentence was held not to lie as the sentence was lawful. The High Court's decision was thus affirmed.

Key legal issues

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01

Scope of a second appeal - confinement to matters of law

Holding

A second appeal to the Court of Appeal lies only on issues of law; the only issue of law raised was identification, and the concurrent factual finding of positive identification could not be disturbed.

Reasoning

The Court noted that the appellant appeared in person and that, this being a second appeal, only issues of law were open to him. He challenged the identification evidence of Kamanu and Kioko, but both the trial Magistrate and the first appellate Judge had independently evaluated and accepted that evidence. The robbery occurred in broad daylight and the appellant was well known to the witnesses as a member of a gang that loitered at the terminus, excluding mistaken identity. The concurrent finding, being based on credible evidence, was binding on the Court.

p. 2
02

Abatement of appeals where sentences have been served

Holding

The appeals of the second and third appellants abated under rule 70(7) of the Court of Appeal Rules because they had already served their sentences and been released from prison.

Reasoning

The Court was informed that the second and third appellants had already served their sentences and been released from prison. In those circumstances, the Court ordered that their appeals abate under rule 70(7) of the Court's Rules, leaving only the first appellant's appeal for consideration.

p. 2
03

Rejection of unsworn statement

Holding

The trial Magistrate's rejection of the appellant's unsworn statement was, in the Court's view, correct.

Reasoning

The appellant stated in his unsworn statement that he was arrested on 13th January 1991 while on his way to church. The learned Magistrate rejected that statement, and the Court of Appeal endorsed the rejection as right, though this formed no part of the dispositive reasoning on the identification issue.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal concerns itself only with issues of law and will not disturb concurrent findings of fact by the two lower courts which are based on credible evidence.
  • Where an appellant has already served the sentence imposed, his appeal abates under rule 70(7) of the Court of Appeal Rules.

Court orders

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  1. 1.The appeals of the second and third appellants (Joseph Gatere and Peter Maina Wachira) do abate under rule 70(7) of the Court of Appeal Rules
  2. 2.The first appellant's appeal against conviction is dismissed
  3. 3.The appeal against sentence does not lie as the sentence was lawful

Authorities

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Legislation

  • Penal Codesection 296(1)
  • Court of Appeal Rulesrule 70(7)
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. Nos. 731, 732 & 791 of 1991
Jurisdiction invoked
Second appeal to the Court of Appeal under the Court of Appeal Rules (rule 70(7) of the Rules of this Court invoked for abatement); appeal limited to issues of law

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, "John Njoroge Njenga & 2 others v Republic [1996] KECA 112 (KLR)", Case Analysis (1996). Criminal Appeal No. 8 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/112/eng@1996-07-31

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