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Court of AppealDismissedCriminal Appeal No. 71 of 2001

KASUNA ISWII vs REPUBLIC [2002] KECA 212 (KLR)

Court of Appeal of Kenya
14 January 2002
307 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot revisit facts on second appeals, so Kasuna Iswii's grievous harm conviction and seven-year sentence stood.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Tunoi, Shah and Keiwua, JJ.A.) dismissed a second appeal by Kasuna Iswii against his conviction on two counts of grievous harm contrary to section 234 of the Penal Code and concurrent sentences of seven years' imprisonment. The appellant had been convicted after trial, and his first appeal to the High Court at Mombasa (Tutui, Commissioner of Assize), delivered on 23rd March 2000, was dismissed with the convictions and sentences upheld. Before the Court of Appeal, the court reminded itself of the settled limitation on second appeals, citing R v Hassan bin Said (9 E.A.C.A. 62): a second appellate court is precluded from questioning findings of fact of the two lower courts where there is evidence to support those findings. The sole question, therefore, was whether the judgments below contained errors of law warranting interference. The court found that the evidence established beyond reasonable doubt that the appellant viciously and without provocation stabbed the two complainants with a sharp knife, and that the plea of self-defence had been correctly rejected by both courts below. Concluding that the conviction rested on sound evidence and that the appeal lacked merit, the court dismissed the appeal in a single judgment of the court delivered at Mombasa on 14th January 2002. No costs order was recorded, and the decision below was affirmed in its entirety.

Questions the Court framed

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

  1. 1.Whether there are errors of law in the judgments of the two lower courts to warrant interference by the Court of Appeal on a second appeal

Key legal issues

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01

Scope of a second appeal to the Court of Appeal

Holding

A second appeal is confined to matters of law; findings of fact of the two lower courts, where supported by evidence, cannot be questioned.

Reasoning

The court invoked the established rule in R v Hassan bin Said that a second appellate court does not revisit findings of fact where evidence supports them. Its only mandate is to identify errors of law in the judgments below. Having found the evidence established the stabbing beyond reasonable doubt and that self-defence was properly rejected, no error of law existed and the appeal failed.

p. 2
02

Rejection of the plea of self-defence

Holding

The self-defence plea was correctly rejected as the attack on the complainants was unprovoked.

Reasoning

The court found as a matter on the record that the appellant viciously stabbed the two complainants with a sharp knife without provocation. On that basis the rejection of self-defence by the trial court and the first appellate court was correct, and no legal error arose from that rejection.

p. 2

Legal principles established

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  • On a second appeal to the Court of Appeal, the court is precluded from questioning findings of fact of the two lower courts provided there is evidence to support those findings; only errors of law warrant interference.

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

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
H.C.CR.APP. NO. 378 OF 1999
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to matters of law

Relief refused

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Quashing of the convictions on two counts of grievous harm and the concurrent sentences of seven years' imprisonment

The appellant was convicted on sound evidence and the plea of self-defence was correctly rejected by the courts below

p. 2

Costs

No costs order 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.

on this second appeal, we are precluded from questioning the findings of fact of the two lower courts, provided that there is evidence to support those findings
p. 2Scope of second appeal - restriction to questions of law
Thus the only question to be decided in this appeal is whether there are errors of law in the judgments of the lower courts to warrant interference by this Court.
p. 2Second appeal limited to errors of law
In our view the appellant was convicted on sound evidence and his appeal to this Court has no merit. The appeal is accordingly dismissed.
p. 2Disposition - appeal dismissed

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, "KASUNA ISWII vs REPUBLIC [2002] KECA 212 (KLR)", Case Analysis (2002). Criminal Appeal No. 71 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/212/eng@2002-01-14

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