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Court of AppealDismissedCriminal Appeal Nos. 244, 248 & 298 of 2007· [2010] KECA 176 (KLR)

Syriacus Onyango Opera & 2 others & Republic [2010] KECA 176 (KLR)

Court of Appeal
2 July 2010
EOE.O. O'KubasuDAD.K.S. AganyanyaAVAlnashir Visram
1,940 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals cannot re-argue facts, so convictions for robbery with violence stood.

What this practically means

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Executive summary

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The three appellants were convicted by the Senior Resident Magistrate at Kibera of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. Their first appeal to the High Court of Kenya at Nairobi (Lesiit & Makhandia, JJ.) was dismissed by judgment dated 8th March 2007, hence this second appeal before the Court of Appeal at Nairobi (O'Kubasu, Aganyanya and Visram, JJA). The prosecution case, accepted by both courts below, was that the complainant, a taxi driver, was carjacked at Kangemi on 16th November 2003 by the appellants and a fourth man who escaped; after a police chase the vehicle crashed into a kiosk and the three appellants were arrested inside the vehicle, from which an identity card, a voter's card, a sword and a toy pistol were recovered. Counsel for the appellants argued that the trial court misapprehended the facts, that the 1st appellant was a good Samaritan and that part of the trial was conducted in English which he did not understand; the 3rd appellant claimed to be a fellow victim. The State supported the conviction. The Court restated that, being a second appeal under section 361(1)(a) of the Criminal Procedure Code, only matters of law fall for consideration, and that concurrent findings of fact and credibility findings of the two courts below will not be disturbed unless no reasonable tribunal could have reached them on the recorded evidence. Applying M'Riungu v R, Karingo v R and Republic v Oyier, the Court found the convictions were based on very sound evidence, that identification did not arise since the appellants were arrested inside the vehicle, and declined to interfere. The appeal was dismissed in its entirety.

Key legal issues

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01

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

Holding

A second appeal is confined to matters of law; the Court of Appeal will not disturb concurrent findings of fact unless no reasonable tribunal could have reached them on the recorded evidence.

Reasoning

The Court invoked section 361(1)(a) of the Criminal Procedure Code and the authorities M'Riungu v R and Karingo v R to restate the settled position that findings of fact, including credibility findings, are for the two courts below. The appellate court owes loyalty to those findings and must resist treating findings of fact as holdings of law or mixed findings.

p. 3
02

Whether the first appeal court correctly dealt with the evidence identifying the appellants

Holding

Since the appellants were arrested inside the complainant's vehicle before they could escape, questions of identification did not arise; the evidence against them was watertight.

Reasoning

The superior court had found, on the evidence of the complainant and the arresting officer PW3, that all three appellants were arrested still seated inside the stolen vehicle, and that the recovery of the 1st appellant's identity card and 3rd appellant's voter's card from the vehicle corroborated the complainant. This Court deciphered no error in that reasoning on a matter of law.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal considers only matters of law and will not interfere with concurrent findings of fact by the two lower courts unless it is apparent that no reasonable tribunal could have reached that conclusion on the recorded evidence.
  • An appellate court will not interfere with findings based on the credibility of witnesses unless it is shown that no reasonable tribunal could have made such findings.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Convictions and death sentences imposed by the trial court and upheld by the High Court stand

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)(a)

Cases cited (3)

  • M' Riungu v. R.
    [1983] KLR 455
  • Karingo v. R.
    [1982] KLR 213
  • Republic v. Oyier
    [1985] KLR 353
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. Nos. 479-481 of 2004
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal confined to matters of law)

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, "Syriacus Onyango Opera & 2 others & Republic [2010] KECA 176 (KLR)", Case Analysis (2010). Criminal Appeal Nos. 244, 248 & 298 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/176/eng@2010-07-02

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