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Court of AppealPartially AllowedCriminal Appeal 243 of 2004· [2005] KECA 170 (KLR)

Godfrey Njogu v Republic [2005] KECA 170 (KLR)

Court of Appeal
29 July 2005
676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a robbery conviction, ruling second appeals cannot re-try facts and that prison sentences cannot be served alongside a death sentence.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Omolo, Githinji and Deverell JJ.A) heard a second appeal by Godfrey Njogu against convictions for robbery with violence contrary to section 296(2) of the Penal Code and for possession of a firearm and of ammunition without firearm certificates contrary to section 4 of the Firearms Act, Cap. 114. The Senior Principal Magistrate, Joyce Manyasi, had convicted him of raiding a petrol station at 8.30 a.m. on 4 July 2000, producing a gun from an empty unga bag, after which a shot was fired from behind the complainant as he fled; the superior court had upheld the convictions. The complainant saw the appellant at close quarters in broad daylight and picked him out at an identification parade held on 12 July 2000, five days after his arrest on information received. When arrested he was found with a jua kali made gun and three rounds of 8.62mm ammunition; he produced no firearm certificate and offered no explanation. The court reiterated that on a second appeal it is bound by the concurrent findings of fact of the trial court and the superior court unless there is a legal reason not to be; finding no misdirection or error of law in either judgment, it accepted that PW1 properly identified the appellant and that the prosecution established every ingredient of each offence beyond reasonable doubt. It therefore dismissed the appeal and confirmed the conviction. On sentence, it held that where death is the only lawful sentence, other sentences should be left in abeyance rather than served, and it held the ten-year prison terms on counts two and three in abeyance. No order as to costs was made.

Key legal issues

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01

Scope of a second appeal - whether the Court may disturb the concurrent findings of fact below.

Holding

On a second appeal the Court is bound by the concurrent findings of fact of the trial court and the superior court unless there is some legal reason why, as a matter of law, it should not be so bound; having studied both judgments it found no misdirection or error of law and so left the findings intact.

Reasoning

The court articulated the constraint that governs a second appeal: it must follow the concurrent findings of fact of the two courts below unless some legal reason exists not to. Studying both judgments with care, it detected no misdirections or error of law in their approach to their respective judgments. It therefore accepted the concurrent finding that PW1 properly identified the appellant as the man who drove into the petrol station with two other persons and produced a gun from an empty unga bag, leaving the findings of fact undisturbed.

p. 1
02

Whether the prosecution proved the offences beyond reasonable doubt, including the identification of the appellant.

Holding

The identification was sound: PW1 saw the appellant at close quarters in broad daylight, pushed past him and ran as a shot was fired, and picked him out at an identification parade; all the ingredients of each offence were established beyond reasonable doubt.

Reasoning

The raid occurred in broad daylight at 8.30 a.m. on 4th July, 2000, and the complainant saw the appellant at close quarter before pushing past him and fleeing as a shot was fired from behind him. The complainant picked the appellant out at an identification parade held on 12th July, 2000, after the appellant's arrest on 7th July, 2000 on information received. The superior court found no flaw in the way the trial magistrate tried the case, and neither did this Court, which held the superior court right to conclude that every ingredient of each offence was proved beyond reasonable doubt.

p. 2
03

Possession of the firearm and ammunition without a firearm certificate.

Holding

Upon arrest the appellant was found with a jua kali made gun and three rounds of 8.62mm ammunition; the firearms examiner confirmed the gun was a firearm under the Firearms Act and the ammunition live; the appellant produced no certificate and offered no explanation.

Reasoning

The possession counts rested on what was found when the appellant was arrested: a jua kali made gun and 3 rounds of 8.62mm ammunition. A firearms examiner's report confirmed that the gun was a firearm under the Firearms Act and that the ammunition was live. The appellant neither produced a firearm certificate nor at any stage explained how he came to be in possession of the weapon and the rounds. Together with the identification evidence, this satisfied the Court that the elements of the two Firearms Act counts were made out and the case proved beyond reasonable doubt.

p. 1
04

Propriety of imposing prison sentences alongside a death sentence.

Holding

Where an accused has been sentenced to death - as on the robbery with violence count, for which death is the only sentence allowed by law - there is no reason to impose other sentences; the proper course is to leave them in abeyance.

Reasoning

The appellant was sentenced to death on the first count, the only sentence allowed by law for robbery with violence, and to ten years imprisonment on counts two and three, running concurrently, which the superior court confirmed. The Court held it unjust that an accused should first serve a prison term and then be hanged thereafter. Invoking its repeated pronouncements, it directed that the prison sentences be held in abeyance and not served, while the death sentence stood.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal is bound by the concurrent findings of fact of the trial court and the first appellate (superior) court unless there is some legal reason why, as a matter of law, it should not be so bound.
  • Where an accused person has been sentenced to death, no other sentences should be imposed on him; a court imposing sentences in such a situation must leave the other sentences in abeyance rather than have them served.

Court orders

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  1. 1.Appeal dismissed and the conviction on all three counts confirmed.
  2. 2.The death sentence on the first count (robbery with violence) stands, being the only sentence allowed by law.
  3. 3.The prison sentences of ten years imposed on counts two and three, ordered to run concurrently, are held in abeyance and shall not be served by the appellant.

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Firearms Act, Cap. 114section 4(2)(a) as read with section 4(3)
  • Firearms Act, Cap. 114section 4(1)(a) as read with section 4(3)(H)
On appeal from
Superior court (first appellate court, whose judge(s) are not named in the judgment)
Jurisdiction invoked
Not expressly stated in the judgment; the Court of Appeal entertained a second criminal appeal against convictions under section 296(2) of the Penal Code and section 4 of the Firearms Act, Cap. 114, as upheld by the superior court.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Godfrey Njogu v Republic [2005] KECA 170 (KLR)", Case Analysis (2005). Criminal Appeal 243 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/170/eng@2005-07-29

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