David Kiarie Kamau v Republic [2006] KECA 73 (KLR)
The bottom line
#Kenya's Court of Appeal threw out the appeal, keeping the robbery conviction intact and confirming an experienced police firearms examiner counts as an expert witness.
What this practically means
#Executive summary
#Key legal issues
#Whether SACP Benson Gichuki qualified as an expert whose opinion evidence could be relied on to prove the firearm and ammunition.
Yes. The absence of formally pleaded qualifications did not disqualify him; his experience and skill were satisfactorily demonstrated and the trial court was entitled to accept his opinion, which was consistent with the wide definition of "firearm" in section 2 of the Firearms Act.
Section 48(1) of the Evidence Act admits opinions of persons specially skilled in science or art. Restating the Mutonyi definition, the Court noted that Gichuki had spent twenty years testing, examining and identifying firearms, ammunition and spent cartridges in the Kenya Police, explained his methodology in a report produced in evidence, and was not challenged in cross-examination on any aspect except a clarification made at the court's instance that the pistol, though in poor condition, could be adapted to discharge a bullet. His experience and skill were thus satisfactorily demonstrated.
Whether there was a nexus between the pistol and ammunition examined by the firearms examiner and those recovered from the appellant.
Yes. Clear concurrent findings established the chain of custody, and on a second appeal the Court would not disturb them; the ground failed.
The Court relied on clear concurrent findings that PW2 recovered the pistol and ammunition from the appellant's person during the arrest and handed them to the officers who arrived at the scene, including Cpl. Simiyu and Pc. Ndegwa, who confirmed receipt. Cpl. Simiyu in turn handed over the items and the arrested appellant to IP Munyua, the investigating officer, who completed the exhibits memo and passed the recovered items to SACP Gichuki for examination. The Court saw no reason to doubt that evidence.
Whether the inconsistencies, discrepancies and contradictions in the evidence of the three eyewitness brothers rendered the identification of the appellant unsafe.
No. The inconsistencies were not material, did not taint the witnesses' demeanour or credibility, and the concurrent findings that the appellant was properly identified disclosed no error of law or principle.
The identification evidence accepted by both courts below showed that the appellant first entered the house alone and conversed with the brothers under a lighted kerosene lamp for about fifteen minutes, and that PW2 followed the robbers outside and never lost sight of the appellant before apprehending him at the scene and recovering the pistol from his socks. The noted inconsistencies - over who opened the door and the sequence of entry - did not go to the substance of the charge. On a second appeal only errors of law could justify interference, and none was shown.
The correct sentencing procedure where a capital count is charged together with lesser counts attracting imprisonment.
The correct procedure is to impose the death sentence on one count only and leave the sentences on the other counts, including any prison terms, in abeyance. The trial magistrate's approach was right; the High Court's imposition and suspension of five-year terms on the two Firearms Act counts was erroneous - although no order was made disturbing those sentences.
Raising the point of its own motion, the Court rehearsed its settled procedure from Abdihussein, Muiruri, Abdul Debano Boye and Samwel Waithaka Gachuru: a convict cannot be hanged twice, so once the death sentence is imposed there is no sense in a prison term; if the appeal on the capital count later succeeds, the appellate court may consider all counts and impose appropriate sentences. It held the trial court's procedure right and the superior court's intervention erroneous. Because the appeal was dismissed in its entirety, the impugned sentences were left standing.
Legal principles established
#- On a second appeal to the Court of Appeal only matters of law may be raised, and the Court will not interfere with concurrent findings of fact made by the two lower courts unless those findings are shown to be based on no evidence or on a perversion of it.
- Where an accused is convicted on a capital count charged together with lesser counts attracting imprisonment, the sentencing court must impose the death sentence on one count only and leave the sentences on the other counts, including any term of imprisonment, in abeyance; a prison term may not properly be imposed (or imposed and suspended) alongside a sentence of death.
- Expert evidence under section 48(1) of the Evidence Act is evidence given by a person skilled and experienced in a professional or special sphere of knowledge, who reaches conclusions on the basis of that knowledge from facts reported to him or discovered by him by tests, measurements and the like; a witness whose experience and skill are satisfactorily demonstrated (and unchallenged in cross-examination) is an expert whose opinion the trial court is entitled to accept.
Court orders
#- 1.The appeal is dismissed in its entirety: "In the result the appeal has no merits and we order that it be and is hereby dismissed in its entirety." (The convictions and sentences of the two courts below, including the five-year suspended sentences on the Firearms Act counts which the Court criticised as erroneous, were left undisturbed.)
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. NO. 1124 OF 2001
- Jurisdiction invoked
- Second appeal to the Court of Appeal; the judgment cites no enabling provision but proceeds on the rule that on a second appeal "only matters of law may be raised".
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiarie Kamau v Republic [2006] KECA 73 (KLR)", Case Analysis (2006). Criminal Appeal 322 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/73/eng@2006-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.