Caleb Obura Karanja v Republic [2005] KECA 195 (KLR)

The court opened by stating the constraint on second appeals. It noted concurrent findings by the trial court and the first appellate court that the appellant was found in possession of the pistol, corroborated by the ballistic expert's report. When the appellant handed in written submissions challenging those findings, the court held that they raised no points of law because they were directed at facts and evidence. With no question of law open, the inevitable result was dismissal in its entirety.

The Court of Appeal expressly endorsed the High Court judge's statement of the first-appeal standard and his witness-by-witness analysis, which also considered the appellant's unsworn statement. It linked that approach to Okeno v R and concluded the Judge properly found the conviction safe and the sentence lawful. Because the first appellate court performed its duty, its findings were concurrent with the magistrate's and immune from disturbance on second appeal.

The pistol was produced in evidence as an exhibit and the ballistic expert's report as Exhibit 3. The court reasoned that the report must have been produced under section 77(1) of the Evidence Act, which admits documents purporting to be reports of, among others, ballistic experts. The report established the pistol's serial number and make, and the appellant held no firearm certificate for it, so the evidential foundation of the concurrent findings of possession was regular.

The High Court judge, after re-examining the evidence, expressly held the sentence lawful and not manifestly excessive before dismissing the first appeal. The Court of Appeal noted that the learned Judge was satisfied the conviction was proper and the sentence lawful, and it identified no point of law arising on sentencing. The sentence therefore stands as part of the concurrent decisions affirmed on second appeal.