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Court of AppealDismissedCriminal Appeal (unnumbered in judgment - memorandum of appeal dated 16th October, 2003)· [2004] KECA 152 (KLR)

Silvanus Njuki Nguku v Republic [2004] KECA 152 (KLR)

Court of Appeal of Kenya
13 February 2004
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuJOJ.W. Onyango-Otieno
3,084 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals only address legal errors, and handwriting experts can directly identify whoever wrote a questioned document.

What this practically means

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Executive summary

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The appellant, Silvanus Njuki Nguku, was convicted by the Chief Magistrate's Court at Nairobi on counts 1 and 3, including stealing by a person employed in the public service contrary to section 280 of the Penal Code, relating to the theft of a cheque for approximately Ksh 190,085 addressed to advocate Ann Nduku Mutua, which disappeared at the Ministry of Foreign Affairs. His first appeal to the High Court succeeded only on count 3; conviction and sentence on count 1 were upheld. He then lodged a second appeal to the Court of Appeal on three principal grounds: that the case was not proved beyond reasonable doubt, that it was riddled with contradictions, that identification was improper, and that the charge was not proved. The central attack was on the handwriting expert's evidence, which was the only evidence linking the appellant to the offence, counsel contending that the expert should only have pointed out features of similarity rather than give a positive opinion. The Court, per Tunoi, O'Kubasu and Onyango-Otieno JJA, held that on a second appeal only matters of law are cognisable. Following Onyango v Republic and departing from Hassan Salum v Republic, it held that a handwriting expert may give a positive opinion that two writings are by the same hand, though such opinion is received with caution. The expert's unchallenged evidence supported the concurrent findings of fact below, and the typographical error in the cheque number occasioned no prejudice. The appeal was dismissed and the appellant ordered committed to prison to serve the trial court's sentence.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to matters of law; concurrent findings of fact by the two lower courts will not be disturbed.

Reasoning

The Court emphasised that its jurisdiction on a second appeal extends only to questions of law. Where the trial court and the first appellate court made concurrent findings of fact - here that the unchallenged handwriting evidence established the appellant opened the account under a false name and deposited the stolen cheque - the Court of Appeal will not interfere absent any error of law.

p. 2
02

Province of handwriting expert evidence

Holding

A document examiner may properly give a positive opinion that two writings are by the same hand; Hassan Salum is only persuasive and was not followed on this point.

Reasoning

Counsel argued, relying on Hassan Salum v Republic, that an expert should only point out features of similarity and leave the court to form its own opinion. The Court adopted Onyango v Republic, noting section 48 of the Evidence Act expressly allows opinion evidence as to identity of handwriting, and that the expert's opinion here was unchallenged in cross-examination.

p. 4
03

Effect of typographical error in the charge sheet

Holding

The misdescription of the cheque number (15011 rather than 150511) was a typographical error causing no prejudice and therefore no injustice.

Reasoning

The charge sheet described the stolen cheque as No 15011, but the cheque produced and evidenced was No 150511. Both lower courts had found the correct cheque was No 150511, and the appellant and his counsel were aware throughout the hearing. As the error occasioned no prejudice or injustice, nothing turned on it.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal can only entertain and consider matters of law and will not interfere with concurrent findings of fact by the trial court and the superior court.
  • Under Kenyan law a handwriting expert must be allowed to give his opinion that two documents were written by the same hand, though such positive opinion should be received with caution.
  • An error or defect in a charge that does not prejudice the accused or occasion a miscarriage of justice is immaterial.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant committed to prison to serve out the sentence imposed by the trial court

Authorities

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Legislation

  • Penal Codesection 280
  • Evidence Actsection 48

Cases cited (3)

  • Hassan Salum vs Republic
    [1964] EA 126
  • Wakefield v Lincoln (Bishop)
    (1921), 90 LJ PC 174
  • Onyango vs Republic
    [1969] EA 362
On appeal from
High Court of Kenya (superior court)
null
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code - matters of law only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Silvanus Njuki Nguku v Republic [2004] KECA 152 (KLR)", Case Analysis (2004). Criminal Appeal (unnumbered in judgment - memorandum of appeal dated 16th October, 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/152/eng@2004-02-13

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