Crim App 78 of 99 Fredrick Gituma v Republic

The Court reiterated that a second appeal raises only issues of law. It examined the evidence solely to satisfy itself that a reasonable tribunal, properly directing itself, could safely conclude that GK U 158 was used in the robbery and that the appellant was driving it. Finding abundant evidence to that effect, it held there was no basis for interfering with the concurrent findings below, and observed that no question of law was really raised apart from the legality of the sentence on count two.

Counsel for the appellant had argued that the Administration Police witnesses could not be relied on as 'independent'. The Court held that the magistrate who saw and heard the witnesses believed them, and the two judges who heard the first appeal agreed they told the truth, leaving the second appellate court with nothing to do about it. It stated it was not aware of any law or practice that police are not independent witnesses or ought not to be believed unless their evidence is supported by other evidence.

The Court explained that the officers instructed to arrest the appellant were not the ones on duty when he drove in, and there was no evidence that those on duty had been instructed to arrest him. On the speedometer, the Court said it did not know the answer, but the vehicle was seen at the scene and driven from it at rally-car speed, and the magistrate and the first appellate court had found that it was the appellant who was driving. The Court saw no reason to dissent from that conclusion.

The Court identified the sentence on count two as the only point of law arising. Section 294 of the Penal Code prescribes a maximum of six months' imprisonment or a fine of three thousand shillings for unlawful use of a motor vehicle. The magistrate had imposed twelve months and the superior court had confirmed that sentence. The Court held the sentence illegal, reduced it to six months, and otherwise dismissed the appeal on both counts.