Jane Wangui Wanyoike v Republic

The Court emphasised that this was a second appeal confined in substance to questions of law. Findings of fact made concurrently by the trial Magistrate and the first appellate court are beyond interference unless glaringly and obviously wrong, or unless the inferences drawn from them amount to an error of law. Having reviewed the grounds, the Court found no such error in the concurrent conclusions that the appellant participated in the robbery, so the factual foundation of the conviction could not be reopened.

Counsel showed that Inspector Langat said Praful Shah and Bakul Patel identified the appellant by touching her, yet only Isaac Nyakundi actually did so, and the two witnesses did not mention the parade. The Court accepted that such weaknesses would normally benefit the accused. However, the appellant was seen in the shop, the robbers were pursued, and she was arrested in the getaway car with a pistol and her identity card, so the direct and cogent evidence sustained the conviction.

The Court, of its own motion, noted that the Magistrate evaluated the defence case first, an approach that at first blush casts an evidential onus on the accused. The proper method is to evaluate the prosecution evidence first and only then turn to the defence. Because the Magistrate cautioned himself that the accused need not prove her innocence and then fully analysed the prosecution evidence, the Court was unable to say there was any miscarriage of justice.

The maker of a document should be called so the defence may cross-examine him or object to production by another person. In the absence of such an objection, Section 77(1) of the Evidence Act authorised production of the P3 forms by another witness. The Rajab Said Abdallah decision cited by counsel stood on its own because the effect of Section 77(1) had not been brought to the attention of the court in that case, so the ground failed.

A first appeal requires the superior court to re-evaluate the evidence for itself. The Court of Appeal was satisfied that Aluoch and Githinji JJ set out the substance of the material witnesses' evidence, made their own independent evaluation, and expressly upheld the Magistrate's conviction. The face of the High Court judgment therefore contradicted the appellant's fifth ground, which accordingly failed along with the related complaint of inadequate appraisal of her defence.

The appellant complained that police officers forced her to sign papers during investigations whose contents she did not know. The Court observed that no confession statement, if any, was tendered in evidence, and therefore the allegation could not affect the conviction or the appeal. The ground was disposed of with the observation that nothing turned on the issue.