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Court of AppealDismissedCriminal Appeal No. 1303 of 1998· [2004] KECA 84 (KLR)

Haron Thomas Nyandoro v Republic [2004] KECA 84 (KLR)

Court of Appeal of Kenya
17 September 2004
ROR. S. C. OmoloEOE. O. O'KubasuWDW. S. Deverell
1,539 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery conviction, ruling that a prosecutor's admission that an appeal should succeed does not bind the court.

What this practically means

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Executive summary

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Haron Thomas Nyandoro was convicted by the Senior Resident Magistrate at Kisii of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, and of personating a public officer contrary to section 105(b) of the Penal Code, for which he received fifteen months' imprisonment. The charge arose from a night robbery on 17th and 18th April 1997 at Buboti Sub-location, Gucha District, in which Lucia Burunda Omwega was robbed of Kshs.75,670/= and wounded. The appellant's first appeal to the High Court (Oguk and Mitey JJ) was dismissed on 2nd August 2003, and he pursued a second appeal to the Court of Appeal (Omolo and O'Kubasu JJ.A. and Deverell Ag. J.A.). Mr. Kiage, for the appellant, argued that the High Court failed to subject the evidence as a whole to a fresh and exhaustive scrutiny, failed to resolve contradictions and failed to consider the defence; the State urged dismissal, contending the appellant was caught red-handed. The court observed that a different State Counsel, Mr. Ondari, had conceded the appeal in the High Court, but held that a State Counsel's view does not decide an appeal: the final decision rests with the court, and the first appellate court was entitled to reject the concession. Applying Okeno v R, the court held the High Court had made an independent evaluation of the evidence; the appellant had been positively identified by the complainant and grabbed and held by her until three witnesses arrived, so that he was caught red-handed on overwhelming evidence. The second appeal was dismissed on 17th September 2004, leaving the conviction and sentences intact. No costs order was made.

Key legal issues

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01

Duty of the first appellate court on an appeal against conviction.

Holding

The High Court discharged its duty: it made an independent evaluation of the evidence and its approach was correct, with the result that the Court of Appeal was in entire agreement with it.

Reasoning

The court restated the Okeno standard — that a first appeal requires a fresh and exhaustive examination of the evidence and the appellate court's own findings, with allowance for the trial court's advantage of seeing and hearing the witnesses. It examined the High Court's judgment, noted that the Judges had scrutinized the evidence and the petition of appeal and had found the evidence overwhelming, and concluded that the superior court adopted a correct approach in dealing with the evidence adduced at trial.

p. 3
02

Effect of a State Counsel's concession of an appeal.

Holding

A State Counsel's concession does not bind the court; the final decision rests with the court, and the first appellate court was entitled to reject the concession made in the appellant's favour.

Reasoning

The court observed that Mr. Ondari had conceded the appellant's appeal in the superior court, while Mr. Kaigai Karundu opposed it before the Court of Appeal, describing the divergence as an unhappy situation. It held that although the High Court never commented on the concession, it was to be taken that the first appellate court rejected Mr. Ondari's stand and was entitled to do so; the appeal therefore fell to be decided on the evidence rather than on the concession.

p. 3
03

Sufficiency of the evidence of identification and apprehension of the appellant at the scene.

Holding

The appellant was positively identified by the complainant and was grabbed and held by her until three witnesses arrived, so that on any view he was caught red-handed and convicted on overwhelming evidence.

Reasoning

The complainant (PW1) identified the appellant by lantern light as the person who took the money, and grabbed him while screaming for assistance. Her sons (PW3 and PW4) and a neighbour (PW5) each found the appellant already being held by the complainant, and the black coat and hat with a crown he wore were produced as exhibits. On second appeal the court found this evidence overwhelming and held the conviction safe.

p. 3

Legal principles established

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  • A first appellate court owes the appellant a fresh and exhaustive examination of the evidence as a whole and its own decision on that evidence; it may not confine itself to asking whether some evidence supports the trial court's findings.
  • A concession of an appeal by State Counsel does not bind the court; the final decision rests with the court, which may reject the concession even without commenting on it.
  • An appellate court is entitled to reject a State Counsel's concession and decide the appeal on the evidence.

Court orders

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  1. 1.The second appeal is dismissed: 'The same is hereby dismissed.'
  2. 2.No further orders were made; consequently the conviction and sentences imposed by the trial court (death for robbery with violence; 15 months' imprisonment for personating a public officer), as upheld on first appeal, remain in force.

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 105(b)

Cases cited (4)

  • OKENO v. R
    [1972] E.A. 32
  • PANDYA v. R
    [1957] E.A. 336
  • SHANTILAL M. RUWALA v. R
    [1957] E.A. 570
  • PETERS v. SUNDAY POST
    [1958] E.A. 426
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. NO. 1303 OF 1998
Jurisdiction invoked
No jurisdictional provision is expressly cited in the judgment; the appeal is described as a second appeal to the Court of Appeal ('The appellant’s appeal to the High Court was dismissed and hence he now comes to this Court by way of second appeal').

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, "Haron Thomas Nyandoro v Republic [2004] KECA 84 (KLR)", Case Analysis (2004). Criminal Appeal No. 1303 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/84/eng@2004-09-17

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