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Court of AppealDismissedCriminal Appeal 311 of 2005· [2006] KECA 59 (KLR)

Simon Kariuki Muriithi v Republic [2006] KECA 59 (KLR)

Court of Appeal of Kenya
10 November 2006
EGE.M. GithinjiPWP.N. WakiJOJ.W. Onyango Otieno
3,413 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a death-sentence robbery appeal, confirming that second appeals can only challenge errors of law, not re-argue facts.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Githinji, Waki and Onyango Otieno JJA) dismissed the appellant's second and final appeal against his conviction for robbery with violence and sentence of death. The appellant, arrested after a daylight shootout in Westlands in which Pc Edward Sang was shot and robbed of his gun patchet, had been convicted by the trial magistrate on four counts; the High Court (Ochieng & Makhandia JJ) upheld the conviction on count 1 but allowed the appeal on the firearm and preparation counts. Before the Court of Appeal, counsel for the appellant argued a single point of law: that the superior court failed to subject the evidence to fresh and exhaustive scrutiny, overlooking contradictions, unproved elements of the offence and the defence of mistaken identity supported by a Police Review magazine report. The Court, sitting as a single judgment, reaffirmed that on a second appeal only matters of law arise and concurrent findings of fact will not be disturbed absent absence of evidence or perversion of it under section 361 of the Criminal Procedure Code. It held that the superior court had admirably discharged its first-appeal duty of re-evaluation; there is no set format for such re-evaluation, adequacy being a question of substance. Section 296(2) of the Penal Code has several limbs, so the acquittal on the firearm count did not vitiate the count 1 conviction since the appellant was in the company of an armed accomplice. The Court also deprecated subordinate courts' disregard of its sentencing directive that death be imposed on only one capital count with the others left in abeyance. The appeal was dismissed in its entirety; no costs order was made, as is usual in a criminal appeal.

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

Only matters of law may be raised; the Court does not interfere with concurrent findings of fact absent absence of evidence or perversion of it.

Reasoning

The Court invoked section 361 of the Criminal Procedure Code and the authorities Njoroge v R and Karingo v R to define its jurisdiction. The complaints raised by counsel were, in substance, challenges to findings of fact made concurrently by the trial court and the first appellate court, and could therefore only succeed if the findings were based on no evidence at all or on a perversion of it, which was not demonstrated.

p. 3
02

Duty of the first appellate court to re-evaluate evidence

Holding

The duty is to reconsider the evidence and draw independent conclusions, but there is no set format for the manner or length of that re-evaluation; adequacy is judged by substance.

Reasoning

The Court applied Okeno v R and Peters v Sunday Post for the first appellate duty, and adopted the Ugandan Supreme Court's guidance in Uganda Breweries Ltd that no set format governs re-evaluation, citing Sembuya v Alports Services and Odongo v Bonge. On the record, the superior court had analysed the four areas of alleged contradiction and the defence of mistaken identity, discharging its duty admirably.

p. 4
03

Ingredients of robbery with violence notwithstanding acquittal on the firearm count

Holding

Conviction under section 296(2) was safe because the offence has several limbs; proof that the appellant was in company with another armed with a dangerous weapon used to shoot the officer sufficed, even though possession of the specific pistol failed for want of proof.

Reasoning

The superior court's doubts about the serial numbers of the Colt pistol led to acquittal on count 2, but that did not undermine count 1. The appellant was in company with another person; between them they were armed with a pistol which was used to shoot Pc Sang, and the appellant then robbed him of his gun. Identification was positive: PW1 never lost sight of the appellant and the incident occurred in broad daylight.

p. 5
04

Sentencing practice where multiple counts carry capital and imprisonment terms

Holding

Subordinate courts must sentence to death on only one capital count and leave other counts, including imprisonment terms, in abeyance.

Reasoning

The Court deprecated the persistent failure of subordinate courts to heed its directive, reiterating the reasoning in Abdul Debano Boye: a convict cannot be hanged twice, and once death is imposed there is no sense in a prison term; if an appeal succeeds on the capital count, the appellate court may then consider all counts. The trial court here had sentenced the appellant to death and consecutive imprisonment terms contrary to this practice.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal will not interfere with concurrent findings of fact unless they were based on no evidence at all or on a perversion of the evidence; only matters of law may be raised.
  • On a first appeal, the superior court has a duty to reconsider the evidence, evaluate it itself and draw its own conclusions, while making allowance for the trial court's advantage of seeing and hearing witnesses.
  • There is no set format for the re-evaluation of evidence by a first appellate court; adequacy is a question of substance, not of the length or style of the analysis.
  • Where an accused is convicted on more than one capital charge, he should be sentenced to death on only one count and the other counts, including any sentences of imprisonment, left in abeyance.
  • The offence of robbery with violence under section 296(2) of the Penal Code has several limbs, any one of which, if proved, sustains a conviction even where the firearm limb fails for want of proof.

Court orders

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  1. 1.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 308(1)
  • Firearm Act (Cap 114, Laws of Kenya)Section 4(1)
  • Firearm Act (Cap 114, Laws of Kenya)Section 4(2)(a)
  • Criminal Procedure CodeSection 361

Cases cited (11)

  • Abdul Debano Boye & Another v R
    Cr Appl. No. 19/01 (ur)
  • Abdulhussein Kaimoi v R
    Cr. App NO 47/01 (ur)
  • Samuel Waithaka Gachuru v R
    Cr App 261/03
  • Muiruri v R
    [1980] KLR 70
  • Njoroge v R
    1982 KLR 388
  • Karingo v R.
    [1982] KLR 213
  • Okeno v R
    [1972] EA 32
  • Peters v Sunday Post
    (1958) EA 424
  • Uganda Breweries Ltd v Uganda Railways Corporation
    [2002] EA 634
  • Sembuya v Alports Services Uganda Limited
    [1999] LLR 109 (SCU)
  • Odongo and another v Bonge
    Supreme court Uganda civil appeal 10 of 1987 (UR)
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A No. 504 of 2001
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code, limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Simon Kariuki Muriithi v Republic [2006] KECA 59 (KLR)", Case Analysis (2006). Criminal Appeal 311 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/59/eng@2006-11-10

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