JOSEPH NJOROGE KINGA vs REPUBLIC [2000] KECA 209 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it will not disturb a criminal conviction on a second appeal unless the lower courts' factual findings were truly exceptional or perverse.
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 two courts below misdirected themselves on the facts, in particular in respect of the serial number of the recovered gun and the consideration of the appellant's alibi.
- 2.Whether this Court, on a second appeal, may interfere with the concurrent findings of fact of the courts below.
- 3.Whether the appellant's conviction for unlawful possession of a firearm and ammunition was proper.
Key legal issues
#Whether the Court of Appeal may interfere with concurrent findings of fact on a second appeal.
No. A second appellate court does not interfere with concurrent findings of fact except in very exceptional circumstances, and none of those circumstances existed in this case.
The court invoked the long-standing East African authorities of Reuben Karari v R and Mohamed Farah Musa v R for the rule that a second appeal does not permit disturbance of concurrent findings of fact absent exceptional circumstances. Having examined the whole body of evidence, it found the appellant's criticisms of the two courts below unjustifiable and the findings neither perverse nor unjudicially arrived at, so the threshold for interference was not met.
Whether the alleged factual misdirections (the serial number of the recovered gun and the treatment of the alibi) vitiated the conviction.
No. Viewed against the whole body of the evidence and the concurrent findings below, the criticisms were not justifiable.
Counsel for the appellant had argued that the serial number of the gun recovered from the lodge was mixed up with those of other guns and that the alibi was not sufficiently considered by the trial court and the first appellate court. The court, looking at the whole body of the evidence and in the face of the concurrent findings below, held the criticism unjustifiable, and declined to characterise the findings as perverse or unjudicially arrived at.
Whether the appellant's conviction for unlawful possession of a firearm and ammunition was proper.
Yes. The appellant was properly convicted and there was no ground whatsoever to interfere with the conviction.
The police officers who conducted the raid at Mwafrica Joji Bar gave detailed evidence of the recovery of a gun and four rounds of ammunition from a bag found in the room and under the bed on which the appellant slept. The trial court disbelieved the appellant's defence of fabrication and denial of presence, and the first appellate court, having gone through all the evidence and submissions, reached the same conclusion. The second appellate court found no basis to disturb that outcome.
Legal principles established
#- On a second appeal, the Court of Appeal does not interfere with concurrent findings of fact by the two courts below except in very exceptional circumstances.
- Concurrent findings of fact that are neither perverse nor unjudicially arrived at will not be disturbed on second appeal.
Court orders
#- 1.The appeal is dismissed in its entirety, leaving the conviction and the concurrent sentences of 42 years imprisonment intact.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 1396 of 1998
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter is before the Court of Appeal as a second appeal in a criminal case, the first appeal having been decided by the High Court (Kuloba, J.).
Relief refused
#Allowance of the appeal and interference with the conviction on the two counts of unlawful possession of a firearm and ammunition
The court was satisfied the appellant was properly convicted and found no ground to interfere with the conviction.
Reversal of the concurrent findings of fact on the alleged serial-number mix-up and the alibi
On a second appeal the court does not interfere with concurrent findings of fact except in very exceptional circumstances, none of which existed here.
Costs
No order as to costs was made; the judgment is silent on costs.
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.
this being a second appeal, this court does not interfere with concurrent findings of fact by the courts below except in certain very exceptional circumstances
We cannot either say that the findings of fact were perverse or were unjudicially arrived at.
We find no merit in this appeal and we dismiss it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPH NJOROGE KINGA vs REPUBLIC [2000] KECA 209 (KLR)", Case Analysis (2000). Criminal Appeal No. 67 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/209/eng@2000-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.