MORRIS NGACHA NJUGUNA & 3 others v REPUBLIC [2007] KECA 162 (KLR)

The court emphasised that by dint of section 361 CPC only issues of law fall for consideration on a second appeal. It therefore declined to entertain the 3rd appellant's complaint that the case against him was not proved to the required standard, holding it to be an issue of fact. Concurrent findings of fact by the trial and first appellate courts, notably on the voluntariness of the confession statements and on the credibility of identifying witnesses, were left undisturbed absent any demonstrated error of law.

The court restated the settled principle governing first appeals and tested the superior court's judgment against it. It found that Lesiit and Makhandia JJ had delved into the evidence, analysed it and drawn their own conclusions for each appellant. The complaints by the 2nd, 3rd and 4th appellants that the superior court failed to re-evaluate the evidence accordingly failed, the court observing that the judgment of that court spoke for itself.

Dr Nyakeri Stephen testified in the trial within a trial about injuries allegedly sustained by the 1st appellant in police custody but was apparently not sworn. The court held the omission curable: the appellant himself called the witness, the witness gave evidence that the trial court considered, and no prejudice was demonstrable. The complaint that this fundamental prejudice vitiated the trial therefore failed.

Adopting Bukenya v Uganda, the court reiterated the three qualifications on the prosecutor's discretion: a duty to call all witnesses necessary to establish the truth, the court's own duty to call any person whose evidence is essential to a just decision, and the entitlement to draw an adverse inference where barely adequate evidence is tendered despite other available witnesses. Applying that framework, the 2nd and 3rd appellants raised no issue requiring clarification by the arresting officer, charges were presented under section 89 CPC, and the investigating officer was not essential to this case.

PW2 observed the 2nd appellant for about five minutes in good light and picked him before asking that he hold a biro as a cigarette, and PW3 also picked him, so the parade flaw was not fatal. The apparent conflict between PW13's evidence in chief and that of PW2 and PW3 was resolved as a typographical error, PW13 having stated in cross-examination that it was unusual for anyone to sit there. The missing parade forms for the 3rd appellant likewise did not vitiate what the court considered a clear case.

Section 207 CPC deals with the recording of pleas. When the charge sheet was substituted with the one consolidating the 2nd appellant's case with those of his co-accused, a fresh plea should properly have been taken. However, the court proceeded throughout as though the 2nd appellant and his co-accused had pleaded not guilty, so neither they nor any co-accused suffered prejudice, and the ground failed.

The 2nd appellant complained of detention from 9 June 2001 without production in court within 14 days; the 3rd and 4th appellants complained of torture. The court held that on the material before it the 2nd appellant's rights could not be said to have been breached, that torture is a question of fact with no supporting evidence on record, and that an appellate court lacks the jurisdiction to investigate such complaints. The proper course is an application under section 84 in the High Court.

The 3rd appellant led police to his girlfriend, from whose single room Kshs 300,000 was recovered in a bag of beans, and admitted in his defence giving her the money; the 1st appellant's information led to recovery of Kshs 202,002 from his wife's brother's house under a mattress. Applying the Penal Code definition of possession, physical possession by another did not exculpate them. The 1st appellant, knowing where the money was and how it got there, was duty-bound to explain it, and his explanation incriminated him.

Accused No. 8's statement implicated the 3rd appellant as the person who gave her Kshs 300,000 at about 11 a.m. on the day of the robbery, and she led police to the money. The court found the statement voluntary and true, since the recovery confirmed it, and held it properly admitted against the 3rd appellant. Although retracted, the recovery was corroborative and no further evidence was necessary; her acquittal under section 210 CPC followed from the 3rd appellant's own admission, so there were no double standards, and Njuguna v R did not apply to the facts.

The trial Magistrate had found, in the trial within a trial, that the 3rd appellant's extra-judicial statement was not voluntarily obtained because he had been tortured, and excluded it. The Court of Appeal held that the alleged torture was aimed at extorting the confession only and did not affect the other aspects of the case, so it did not invalidate the proceedings. Any constitutional claim lay under section 84 of the Constitution, though the court made no finding that the 3rd appellant's rights were violated.

The 3rd appellant complained that the trial Magistrate's observation about the failure to produce some parade forms shifted the burden of proof to him. The Court of Appeal found nothing in the statement casting any burden on the appellant to prove anything, while observing, with due respect, that there was no evidence before the Magistrate of a calculated move to subvert justice and that the remark was unfortunate, misplaced and unnecessary; the failure to avail the forms could well have been an innocent mistake.

The 4th appellant stated in his defence that he was at Saba Saba Market on the material date. The trial Magistrate set out the defence in her judgment but did not specifically discuss it, and the superior court did not do so either. The court held that given the overwhelming identification evidence of PW1, PW3, PW4 and PW13, including identification by a scar on his face, the omission did not occasion a failure of justice.