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Court of AppealDismissedCriminal Appeal 37 & 62 of 2004· [2008] KECA 210 (KLR)

David Nderitu & another v Republic [2008] KECA 210 (KLR)

Court of Appeal of Kenya
16 May 2008
ROR. S. C. OmoloEGE. M. GithinjiJAJ. Aluoch
2,135 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed the robbery convictions' appeals, ruling that minor procedural flaws cannot overturn verdicts when the evidence of guilt is overwhelming.

What this practically means

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Executive summary

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The two appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code by a Senior Resident Magistrate at Nyeri and sentenced to death. Their first appeals were dismissed by the High Court at Nyeri (Juma and Ombija, JJ) in a judgment of about two and a quarter pages, and they brought second appeals to the Court of Appeal at Nyeri on four grounds: a fatally defective charge; conduct of the trial in a language they allegedly did not understand contrary to section 77(2)(f) of the Constitution; prosecution by an unqualified person; and fatal discrepancies in the prosecution case. The Court, in a single judgment of the whole bench (Omolo, Githinji and Aluocho, JJA), rejected all four grounds. The allegation that the complainant was robbed 'on behalf of Likii River Farm' caused no injustice since he was a special owner of the money under section 268(2) of the Penal Code, and any defect was curable under section 382 of the Criminal Procedure Code. On language, the Court held there is no set formula for court records; a record showing English-to-Kiswahili interpretation suffices, and 'understands' does not mean the accused's mother-tongue. Corporal Leichena conducted no prosecution, having appeared only at judgment. Although the Court found that the High Court had failed in its Okeno duty to re-evaluate the evidence, it held the evidence of guilt was overwhelming and dismissed both appeals in their entirety on 16 May 2008, affirming the convictions and death sentences. No separate costs order was made.

Key legal issues

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01

Defective charge - robbery 'on behalf of Likii River Farm'

Holding

The charge was not fatally defective; the complainant was a special owner under section 268(2) of the Penal Code and the unnecessary words caused no injustice

Reasoning

The stolen money belonged to Likii River Farm; Wamae had withdrawn it to pay workers' salaries and was in charge of it on the Farm's behalf, making him a special owner under section 268(2) of the Penal Code. There was thus no need to state that he was robbed on behalf of the Farm, and the superfluous words occasioned no injustice, being curable under section 382 of the Criminal Procedure Code.

p. 2
02

Language of trial under section 77(2)(f) of the Constitution

Holding

No nullity; the record showing English-to-Kiswahili interpretation sufficed and the appellants understood Kiswahili despite later choosing Kikuyu

Reasoning

English and Kiswahili are Kenya's official languages; the constitutional reference to a language an accused 'understands' does not mean the mother-tongue. The Magistrate recorded that interpretation was from English to Kiswahili, virtually all witnesses testified in Kiswahili, and the appellants told the Magistrate they understood Kiswahili. Their choice to give unsworn statements in Kikuyu did not show non-comprehension of Kiswahili.

p. 2
03

Prosecution by an unqualified person

Holding

No nullity; Corporal Leichena conducted no prosecution as the case had long ended when he appeared at judgment

Reasoning

All thirteen witnesses were led through their evidence by Inspector Ochieng. Corporal Leichena appeared only at the delivery of judgment and merely conveyed that the appellants could be treated as first offenders. The prosecution had by then long ended, so Eliremahat no application and ground three failed.

p. 3
04

Duty of the first appellate court and sufficiency of evidence

Holding

The High Court failed to re-evaluate the evidence as required by Okeno, but the failure was not fatal since the evidence of guilt was overwhelming

Reasoning

The High Court's judgment of two and a quarter pages merely confirmed the trial Magistrate's conclusions without reconsidering, evaluating and drawing its own conclusions from the evidence, contrary to Okeno v Republic. However, on the Court's own reading of the record - the appellants were chased and caught within the Farm having been dismissed from its employment, and discrepancies were minor - the convictions would inevitably have been upheld.

p. 3

Legal principles established

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  • Second appeals to the Court of Appeal are confined to matters of law under section 361(1) of the Criminal Procedure Code
  • On a first appeal the High Court must reconsider the evidence, evaluate it itself and draw its own conclusions, not merely confirm the trial magistrate's findings
  • There is no set formula for court records; it is sufficient that the record shows interpretation from one language to the other, and 'understands' does not mean the accused's mother-tongue
  • Defects in a charge that occasion no injustice are curable under section 382 of the Criminal Procedure Code

Court orders

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  1. 1.The appeals be and are hereby dismissed in their entirety

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 268(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 382
  • Constitution of Kenyasection 77(2)(f)

Cases cited (3)

  • ELIREMA & ANOTHER VS. REPUBLIC
    [2003] KLR 537
  • OKENO VS. REPUBLIC
    [1972] EA 32
  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123
On appeal from
High Court of Kenya at Nyeri
H.C. Cr. Appeals No. 345 & 346 of 2001
Jurisdiction invoked
Second appeal under section 361(1) 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 (21)

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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, "David Nderitu & another v Republic [2008] KECA 210 (KLR)", Case Analysis (2008). Criminal Appeal 37 & 62 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/210/eng@2008-05-16

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