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Court of AppealDismissedCriminal Appeal No. 383 of 2009

Queresh Muli Mutinda & 2 others v Republic [2010] KECA 16 (KLR)

Court of Appeal of Kenya
10 December 2010
2,439 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 second appeals only challenge legal errors, so credible identification evidence and convictions from lower courts will stand.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Nairobi against the dismissal by the High Court at Machakos (Ochieng & Lenaola, JJ.) of the appellants' first appeals against convictions for robbery with violence contrary to Section 296(2) of the Penal Code and death sentences imposed by the Senior Resident Magistrate, Machakos. The third appellant, Julius Ndali Muli, died before his first appeal was heard and his appeal had been marked as abated; the Court rectified the record by deleting his name, leaving Queresh Muli Mutinda and Antony Musango Ndunda as appellants. The complainant was robbed of Shs.6,700 and safari boots at Thwangu market in the early hours of 13th September 2006 and identified the appellants, whom he knew before, by full moonlight, naming the first appellant at the earliest opportunity. The appellants argued that identification evidence fell below the required standard, that the complainant had taken alcohol, that the burden of proof was shifted, that intoxication was not considered, and that the trial was unfair as regards the recall of witnesses after substitution of the charge. Applying Section 361(1) of the Criminal Procedure Code, which confines a second appeal to matters of law, and its own precedent in M'Riungu v Republic, the Court held there were concurrent findings of material facts by the two courts below, tested the single identifying witness's evidence with circumspection, and found no basis for interference. The Court affirmed the decision below and dismissed the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the evidence of identification by a single identifying witness at night was sufficient to sustain the convictions
  2. 2.Whether the superior court erred in relying on the evidence of a complainant who had taken alcohol
  3. 3.Whether the trial court shifted the burden of proof onto the appellants
  4. 4.Whether the 1st appellant raised a defence of intoxication that was not considered
  5. 5.Whether the appellants received a fair trial, including on the recalling of witnesses after substitution of the charge

Key legal issues

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01

Scope of a second appeal under Section 361(1) of the Criminal Procedure Code

Holding

A second appeal lies only on matters of law; the Court is bound by concurrent findings of fact of the lower courts unless no reasonable tribunal could have reached them

Reasoning

The Court invoked Section 361(1) and its own precedent in M'Riungu v Republic, holding that an appellate court on a second appeal must accept findings of fact of lower courts, not treat holdings of fact as holdings of law, and should not interfere unless it is apparent that on the evidence no reasonable tribunal could have reached that conclusion. There being concurrent findings of material facts on identification, the Court had no basis to interfere.

p. 3
02

Identification by a single witness at night

Holding

The evidence of the single identifying witness was reliable and free from possibility of error; both lower courts tested it with circumspection, and the conviction was safe

Reasoning

The trial court made specific findings that there was full moonlight, close proximity, prior acquaintance of the complainant with the appellants, naming of the 1st appellant at the earliest opportunity, and no reason to frame the appellants. The superior court made parallel findings and described the exact role each appellant played. The Court held the two courts below appreciated the single-witness-at-night danger and tested the complainant's evidence with circumspection before relying on it.

p. 4
03

Defence of intoxication

Holding

The 1st appellant did not raise the defence of intoxication as known to law

Reasoning

The 1st appellant never admitted being in the bar nor that he robbed the complainant while intoxicated to the extent of not knowing what he was doing. His statement in cross-examination that he was too drunk was a bald denial of presence rather than a plea of intoxication as a defence. The Court therefore rejected the submission that the superior court erred in failing to consider intoxication.

p. 4
04

Alleged shifting of the burden of proof

Holding

The trial magistrate's comment that the appellants did not say where they were was unfortunate but occasioned no failure of justice

Reasoning

The trial magistrate expressly stated that the appellants had no burden to discharge; the comment made after finding them guilty was in essence an observation that no defence of alibi had been raised. Since the appellants made only bald denials and no alibi, the comment did not shift the burden of proof or vitiate the conviction.

p. 4
05

Fair trial - recalling of witnesses after substitution of the charge

Holding

The complaint of unfairness had no merit; the trial magistrate complied with Section 214(1)(ii) of the Criminal Procedure Code

Reasoning

The substituted charge retained the original count of robbery with violence; the only new count was an alternative charge against the deceased alone. The trial magistrate allowed the deceased to recall witnesses, two were recalled and cross-examined, and the appellants never demanded that any further witnesses be recalled.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and must accept the findings of fact of the lower courts unless no reasonable tribunal could have reached that conclusion
  • An appellate court cannot interfere with findings based on the credibility of a witness unless no reasonable tribunal could have made such findings

Court orders

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  1. 1.The record of appeal rectified by deleting the name of the deceased 3rd appellant, Julius Ndali Muli
  2. 2.The appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Machakos
H.C.CR.A. Nos. 91, 92 & 93 of 2007
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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The appeal against conviction and sentence

Concurrent findings of fact by the two courts below were founded on credible and overwhelming evidence

p. 4

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Section 361 (1) of the Criminal Procedure Code allows a second appeal, such as the present one, only on a matter of law.
p. 3Scope of second appeal
the appellate court should not interfere with the decision of the trial or first appellate court unless it is apparent that on the evidence no reasonable tribunal could have reached that conclusion
p. 3Non-interference with concurrent findings of fact
From the foregoing, there is no basis for interfering with the concurrent findings of the two courts below which findings were founded on credible and overwhelming evidence. We are satisfied that the appellants were properly convicted and the appeal is dismissed.
p. 4Disposition - appeal dismissed

Issues in the judgment

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minor

The judgment spells the deceased third appellant's name inconsistently ('Ndali' in the coram and opening paragraph, 'Ndalu' later in the narrative)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Queresh Muli Mutinda & 2 others v Republic [2010] KECA 16 (KLR)", Case Analysis (2010). Criminal Appeal No. 383 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/16/eng@2010-12-10

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