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Court of AppealDismissedCriminal Appeal No. 101 of 1999

SAID ABEID SAID vs REPUBLIC (? 101 of 1999) [2000] KECA 86 (KLR)

Court of Appeal of Kenya
26 January 2000
527 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot re-examine facts on a second appeal, and a conviction survived despite a P.3 Form irregularity.

What this practically means

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Executive summary

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The appellant was convicted by a magistrate's court of robbery with violence contrary to section 296(2) of the Penal Code, on particulars alleging that he, jointly with others not before the court and armed with knives, robbed the complainant of Kshs.2,000 and a wrist watch while using actual violence. His first appeal to the High Court at Mombasa (Hayanga and Waki, JJ.) failed, and he appealed to the Court of Appeal at Mombasa as a second appeal. Before the Court of Appeal the appellant sought to cast doubt on the concurrent factual finding that the complainant was attacked by four people, and further complained that the P.3 Form signed by the doctor who treated the complainant had been improperly admitted because he was not informed of his right to have the doctor cross-examined. Counsel for the respondent conceded the irregularity regarding the P.3 Form but maintained that the charge did not depend on that document. The court held that on a second appeal it has no jurisdiction to disturb concurrent findings of fact properly accepted by the trial magistrate and the superior court. On the P.3 Form, the court agreed that, given the ingredients of robbery with violence under section 296(2), there was ample other evidence - the appellant's possession of a knife and the presence of companions - to sustain the conviction. The appeal was accordingly dismissed. The judgment was delivered as a single judgment of the whole court on 26th January 2000.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal on a second appeal can interfere with concurrent findings of fact by the trial magistrate and the High Court
  2. 2.Whether the admission of the P.3 Form without an opportunity to cross-examine the doctor rendered the conviction unsafe

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

The court will not entertain matters of fact on a second appeal where those findings were properly accepted by the trial magistrate and the High Court.

Reasoning

The court distinguished between matters of fact, which are settled by the two courts below, and matters of law, which alone are open on a second appeal. Both the trial magistrate and the High Court Judges had accepted the complainant's evidence that he was attacked by four people, so the appellant's attempt to cast doubt on those findings was outside the court's jurisdiction.

p. 2
02

Admissibility of the P.3 Form and effect of non-disclosure of the right to cross-examine the doctor

Holding

Although the appellant was not informed of his right to have the doctor cross-examined, the irregularity was not fatal because the charge of robbery with violence did not depend on the P.3 Form.

Reasoning

Section 77 of the Evidence Act permits production of a medical report without calling the practitioner. The respondent conceded the irregularity but argued, and the court agreed, that the ingredients of robbery with violence under section 296(2) were proved by other evidence: the appellant was armed with a knife and acted in company of others, as found by both courts below.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal has no jurisdiction to concern itself with matters of fact that were properly accepted by the trial court and the first appellate court.
  • A conviction for robbery with violence under section 296(2) of the Penal Code may be sustained by evidence independent of a P.3 Form even where the form was admitted without the accused being informed of the right to cross-examine the doctor.

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
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 300 of 1997
Jurisdiction invoked
Second appellate jurisdiction over a criminal appeal from the High Court exercising first appellate jurisdiction

Relief refused

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Quashing of the conviction for robbery with violence

The conviction was supported by ample evidence independent of the P.3 Form, and factual findings were not open to review on a second appeal

p. 2

Costs

No costs order was made 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.

This being a second appeal, this court has no jurisdiction and will not concern itself with matters of facts which in any event, have been properly accepted by the trial magistrate and the superior court.
p. 2Jurisdiction of the Court of Appeal on second appeal
There is no basis upon which we can on a second appeal, interfere with these findings of facts.
p. 2Non-interference with concurrent findings of fact
We accordingly dismiss the appeal because the appellant's conviction by the magistrate was supported by other evidence.
p. 2Final orders - dismissal of the appeal

Issues in the judgment

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minor

The judgment text contains a typographical corruption where the complainant's name runs into the following sentence

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, "SAID ABEID SAID vs REPUBLIC (? 101 of 1999) [2000] KECA 86 (KLR)", Case Analysis (2000). Criminal Appeal No. 101 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/86/eng@2000-01-26

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