Shimayamana Jeane Claude v Republic [2008] KECA 206 (KLR)

Court of Appeal of Kenya

11 April 2008

ROR.S.C Omolo EOE.O. O'Kubasu DAD.K.S. Aganyanya

2,055 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that a second appeal can only challenge errors of law, not re-argue facts already decided by two lower courts.

What this practically means

Executive summary

The appellant was convicted by the Senior Resident Magistrate's Court at Kakuma on two counts of defilement of girls under 16 years contrary to section 144(1) of the Penal Code and sentenced to 15 years imprisonment with hard labour on each count, the sentences to run concurrently. On first appeal, Karanja J of the High Court at Kitale re-evaluated the evidence, held that the medical evidence did not establish penetration, and substituted convictions for attempted defilement under section 145(2) of the Penal Code while upholding the sentences. The appellant then filed a second and final appeal to the Court of Appeal, which under section 361(1) of the Criminal Procedure Code was confined to matters of law. The Court, comprising Omolo, O'Kubasu and Aganyanya JJ A in a single judgment of the court, restated the settled principle that it will not interfere with concurrent findings of fact of the two courts below unless there was absolutely no evidence on which those findings could rest, or the evidence was so unreasonable that no reasonable tribunal properly directing itself could have reached those conclusions. Citing Chemagong v R and Ogeto v R, the Court found neither factor applicable, noted that the appellant's written submissions disclosed nothing warranting interference, and held the sentence lawful. The appeal was dismissed in its entirety both as to conviction and sentence. The judgment affirms the narrow scope of second appeals in Kenya and the binding force of concurrent factual findings below.

Key legal issues

Whether the Court of Appeal could disturb the concurrent findings of fact on guilt of attempted defilement

Holding

The Court could not interfere; neither the absence of evidence nor unreasonableness of the evidence was established.

Reasoning

The Court applied the established second-appeal threshold from Chemagong v R and Ogeto v R. The trial Magistrate had been satisfied beyond reasonable doubt on the evidence of the two girls corroborated by the eyewitness father, and the High Court on first appeal had re-evaluated the evidence and confirmed guilt on attempted defilement. Nothing in the appellant's written submissions warranted interference. The threshold was a narrow one, and neither of the two qualifying factors was applicable here.

p. 4

Lawfulness of the sentence of 15 years imprisonment with hard labour on each count, running concurrently

Holding

The sentence was lawful and was upheld.

Reasoning

The High Court had already substituted convictions for attempted defilement under section 145(2) of the Penal Code while upholding the sentences of 15 years imprisonment on each count plus hard labour, to run concurrently. On second appeal confined to matters of law, the Court of Appeal found no legal error in the sentence and dismissed the appeal both as to conviction and sentence.

p. 4

Legal principles established

A second appellate court will only interfere with concurrent findings of fact where there was absolutely no evidence supporting the findings, or the evidence was so unreasonable that no reasonable tribunal properly directing itself could have made them
On a second and final appeal, only matters of law fall for consideration under section 361(1) of the Criminal Procedure Code

Court orders

1.Appeal dismissed both as to conviction and sentence

Authorities

Legislation

Penal Codesection 144(1)
Penal Codesection 145(1)
Penal Codesection 145(2)
Criminal Procedure Codesection 361(1)
Criminal Procedure Codesection 382
Criminal Procedure Codesection 186

Cases cited (2)

CHEMAGONG V R.
[1984] KLR 611
OGETO V R
[2004] 2 KLR 14

On appeal from: High Court of Kenya at Kitale; H.C. Criminal Appeal No. 33 of 2004
Jurisdiction invoked: Section 361(1) of the Criminal Procedure Code - second and final appeal limited to matters of law

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Wesley Kiprono Mutai v Republic [2014] KECA 149 (KLR)
[2014] KECA 149 (KLR)18 Dec 2014distinguished

Cite this brief

Caselaw, "Shimayamana Jeane Claude v Republic [2008] KECA 206 (KLR)", Case Analysis (2008). Criminal Appeal No. 67 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/206/eng@2008-04-11

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