O'kubasu v Republic (Criminal Appeal 69 of 1999) [2000] KECA 141 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a corruption conviction, ruling judges may comment when an accused chooses not to testify under oath.
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 first appellate Judge's comments on the appellant's unsworn statement were adverse and vitiated the conviction
- 2.Whether the first appellate court failed to re-evaluate the evidence afresh as required on a first appeal
- 3.Whether this Court should interfere with the conviction on a second appeal
Key legal issues
#Adverse judicial comment on an accused's unsworn statement
The ground fails; the Judge's remarks were within the permissible discretion to comment on the accused's failure to give evidence on oath.
The Court examined the Judge's comments in full and found nothing adverse. Relying on the Privy Council in Cyril Waugh v R, it held that a judge may comment on the accused not giving evidence on oath, as a matter of discretion, so long as the comment does not bolster a weak prosecution case or treat silence as an admission of guilt. The Judge here did neither.
Duty of the first appellate court to re-evaluate evidence
The first appellate court applied the correct rule; it was entitled to accept the trial court's findings where satisfied there was evidence supporting them.
The Court restated the principles from Shantilal Maneklal Rumba v R: the first appellate court must make up its own mind, weighing the judgment below and being guided by the trial court's advantage in seeing witnesses, but need not write a first-instance judgment. It is enough that it independently considered and evaluated the evidence and was satisfied the trial court could properly reach its conclusion. The Judge here had the right rule in mind.
Legal principles established
#- On a first appeal, the appellate court must reconsider and evaluate the evidence afresh, weighing the judgment below, but is not required to write a first-instance judgment; it suffices that it is satisfied there was evidence on which the trial court could properly find as it did.
- A judge may, in assessing the evidence, take into account that the accused did not give evidence on oath, provided the comment is exercised with caution and is not used to bolster a weak prosecution case or treated as an admission of guilt.
- On a second appeal, whether the first appellate court applied or failed to apply the correct principles of re-evaluation of evidence is a question of law.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence imposed by the courts below stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.CR.A. No. 72 of 1998
- Jurisdiction invoked
- Second criminal appeal to the Court of Appeal under the Criminal Procedure Code (appeal against conviction lying on matters of law only)
Relief refused
#Quashing of the conviction for corruption and the two-year imprisonment sentence
The Court found no error of law or fact in the courts below; the Judge's comments on the unsworn statement were permissible and the first appellate court applied the correct principles
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.
Having heard and carefully considered the arguments in the present appeal, for the reasons above stated, we are satisfied that the courts below had made no error of law or fact which would justify this Court in interfering with the conviction. Accordingly, the appeal is dismissed.
It is sufficient on questions of fact if the appellate court having itself considered and evaluated the evidence, and having tested the conclusions of the court of first instance drawn from the demeanour of the witnesses against the whole of their evidence, is satisfied that there was evidence upon which the court of first instance could properly and reasonably find as it did.
a judge in assessing the evidence in order to arrive at his verdict can take into account the fact that an accused person has not given evidence on oath, but this right must be exercised with caution
On second appeal it becomes a question of law as to whether the first appellate court on approaching its task, applied or failed to apply such principles.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "O'kubasu v Republic (Criminal Appeal 69 of 1999) [2000] KECA 141 (KLR)", Case Analysis (2000). Criminal Appeal No. 69 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/141/eng@2000-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.