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Court of AppealDismissedCriminal Appeal 334 of 2008· [2009] KECA 463 (KLR)

Charles Chacha Sasi v Republic

Court of Appeal
7 August 2009
JOJwo OtienoEOEo O'KubasuJNJg Nyamu
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that pre-trial detention counted only working days, and second appeals cannot re-litigate facts already found by lower courts.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against the dismissal by the High Court at Kisii (Bauni & Warsame, JJ) of the appellant's first appeal against conviction and death sentence for robbery with violence contrary to section 296(2) of the Penal Code, arising from the robbery of George Nyanza Nyapara of a mobile phone, wrist watch, coat, identity card and cash in May 2004. Two grounds were argued: first, that the appellant was held for 18 days before his first court appearance, exceeding the 14-day limit in section 72(3) of the former Constitution and rendering the trial a nullity; second, that the first appellate court failed to re-evaluate the evidence. The court recomputed the detention period, excluding non-working days and the Madaraka Day holiday, and found the appellant was held only 13 days, within the prescribed period, so the prosecution's burden of explanation was never engaged. It also drew attention, without making a determination, to section 84(7) of the Constitution and the need to raise constitutional violations early. On the second ground, the court held that the alleged inconsistencies were matters of fact on which the two lower courts made concurrent findings, which bind a second appeal confined to points of law; identification was by recognition by a complainant who had known the appellant for twenty years, and the ingredients of section 296(2) were proved. The appeal was dismissed in its entirety, the conviction and death sentence standing.

Key legal issues

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01

Whether detention before first court appearance exceeded the 14-day limit under section 72(3) of the Constitution

Holding

The court recomputed the period: excluding non-working days and the Madaraka Day holiday, detention was 13 days, within the 14-day limit, so no violation arose.

Reasoning

The appellant was arrested on 21st May 2004 and taken to the Assistant Chief on 22nd May; the following Saturday and Sunday were not working days, so time began running on Monday 24th May 2004. Accounting for Madaraka Day (1st June) and the weekend of 6th and 7th June, the appellant was held for 13 days, within the prescribed 14 days. The prosecution's burden of explanation under section 72(3) was therefore never triggered.

p. 2
02

Whether the first appellate court failed to re-evaluate the evidence

Holding

The alleged inconsistencies were matters of fact on which the two lower courts made concurrent findings, which bind a second appeal; the ingredients of robbery with violence under section 296(2) were proved.

Reasoning

Identification was by recognition by a complainant who had known the appellant for twenty years. The alleged inconsistency about who found the complainant was immaterial. The P3 form issue did not avail the appellant because the other ingredients of section 296(2) - acting in company and being armed with offensive weapons - were adequately proved. A second appeal lies only on points of law.

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and is bound by concurrent findings of fact of the lower courts unless those findings were not based on evidence.
  • Compliance with section 72(3) of the Constitution does not admit of a rule of thumb; a reasonable explanation for delay, including a delay of one or two days, may be excused as not inordinate.
  • Alleged constitutional violations should be raised as early as possible in the proceedings, per section 84 of the Constitution.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction and sentence of death as imposed by the courts below left standing

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Constitution of Kenyasection 72(3)
  • Constitution of Kenyasection 84(7)

Cases cited (2)

  • Paul Mwangi Murunga V. Republic
    2008 (e KLR)

    No rule of thumb on section 72(3); a reasonable explanation, including a delay of one or two days, may be excused as not inordinate.

  • Njoroge V. Republic
    [1982] KLR 388

    On a second appeal the Court is concerned only with points of law and bound by concurrent findings of fact unless not passed on evidence.

On appeal from
High Court of Kenya at Kisii
H.C.CR.A. No. 44 of 200
Jurisdiction invoked
Second appeal to the Court of Appeal on points of law (section 84(7) of the former Constitution referenced for constitutional appeals; criminal appellate jurisdiction over the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Charles Chacha Sasi v Republic", Case Analysis (2009). Criminal Appeal 334 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/463/eng@2009-08-07

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