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Court of AppealDismissedCriminal Appeal 349 of 2007· [2009] KECA 341 (KLR)

Reuben Gitonga Nderitu v Republic [2009] KECA 341 (KLR)

Court of Appeal of Kenya
15 May 2009
ROR.S.C. OmoloEGE. M. GithinjiAVAlnashir Visram
1,182 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a second appeal can only challenge errors of law, not facts or how severe a sentence is.

What this practically means

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Executive summary

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This was a second appeal against conviction and sentence for defilement of a girl under 16 years contrary to section 145(1) of the Penal Code. The appellant, unrepresented, was convicted by the Senior Resident Magistrate's Court at Nanyuki on 11th August 2005 and sentenced to 25 years' imprisonment with hard labour. On first appeal, Makhandia J dismissed the appeal against conviction but reduced the sentence to ten years' imprisonment with hard labour. Before the Court of Appeal, the appellant raised home-made grounds, of which only two raised matters of law: the absence of a medical examination of the appellant, and the prosecution's failure to call the investigating officer. The Court, invoking section 361 of the Criminal Procedure Code, confined itself to matters of law. It held that the medical evidence of defilement was overwhelming and uncontradicted, identification was not in issue, and the appellant's non-examination would have added no value to the prosecution case. It further held that it is not mandatory to call the investigating officer unless there is an allegation that his evidence would have been adverse to the prosecution, which was not made here. The Court declined to interfere with sentence, since severity of sentence falls outside the second appellate jurisdiction unless the sentence is unlawful. The appeal was dismissed in its entirety, affirming both the conviction and the ten-year sentence imposed by the High Court. The judgment was delivered as a single judgment of the whole court without a separate opinion.

Key legal issues

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01

Whether lack of medical examination of the appellant undermined the conviction

Holding

No. The medical evidence established defilement of the complainant and identification was not in issue, so examination of the accused would have added no value.

Reasoning

The clinical officer's evidence that the complainant's hymen was torn with rough edges and hyperemic, indicating recent rupture, was uncontradicted. Identification of the appellant was not an issue. Because the prosecution case was overwhelming without medical evidence from the accused, his non-examination could not found a ground of appeal going to the safety of the conviction.

p. 2
02

Whether non-attendance of the investigating officer as a witness was fatal

Holding

No. Calling the investigating officer is not mandatory absent an allegation that he would have given evidence adverse to the prosecution.

Reasoning

The Court articulated the governing principle: the investigating officer need not be called unless there is an allegation that he would have said something adverse to the prosecution case. No such allegation was made here, and his evidence would not have added value to the overwhelming evidence already before the court. The complaint therefore raised nothing cognisable on a second appeal.

p. 2
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Scope of a second appeal on conviction and sentence

Holding

A second appeal lies only on matters of law; findings of fact by the two courts below cannot be disturbed, and sentence may be reviewed only for lawfulness.

Reasoning

Section 361 of the Criminal Procedure Code confines the Court to questions of law. The Court found that the magistrate's findings of fact were re-evaluated and confirmed on first appeal, and could not be faulted. Severity of sentence is likewise outside the second appellate jurisdiction unless the sentence is unlawful. Both the conviction and the ten-year sentence imposed by the High Court therefore stood.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law only, per section 361 of the Criminal Procedure Code.
  • It is not mandatory that the investigating officer testify; his absence is only material if there is an allegation that his evidence would have been adverse to the prosecution case.
  • The absence of a medical examination of the accused does not of itself render a conviction unsafe where other evidence connecting the accused to the offence is overwhelming.
  • On a second appeal, the Court of Appeal may not interfere with sentence on grounds of severity; only the lawfulness of the sentence is open to review.

Court orders

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  1. 1.The appeal against conviction and sentence is dismissed

Authorities

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Legislation

  • Penal Codesection 145(1)
  • Criminal Procedure Codesection 361
  • Constitution of Kenyasection 77
  • Criminal Procedure Codesection 199
On appeal from
High Court of Kenya at Nyeri
H.C.CR.A. No. 237 of 2005
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 (3)

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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, "Reuben Gitonga Nderitu v Republic [2009] KECA 341 (KLR)", Case Analysis (2009). Criminal Appeal 349 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/341/eng@2009-05-15

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