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Court of AppealDismissedCriminal Appeal 166 of 2004

Boniface Kamande & 2 others v Republic [2010] KECA 209 (KLR)

Court of Appeal of Kenya
25 June 2010
ROR.S.C. OmoloPWP.N. WakiDAD.K.S. Aganyanya
2,974 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed three robbery appeals, confirming that constitutional complaints not raised at trial or on first appeal are treated as waived.

What this practically means

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Executive summary

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Three appellants, convicted by the Chief Magistrate's Court at Meru of robbery with violence arising from a November 2001 robbery at the Kirugi home in which Fredrick Kirugi was shot dead, and each sentenced to death on two counts, lost their first appeals before the High Court (Onyancha and Okwengu, JJ) on 22 May 2004, which altered the first count to attempted robbery with violence but confirmed the death sentences. On this second and final appeal before the Court of Appeal at Nyeri (Omolo, Waki and Aganyanya, JJA), counsel for the appellants pressed four grounds: failure of the first appellate court to re-evaluate the identification evidence; detention of about 40 days before charge contrary to section 72(3) of the Constitution; absence of interpretation of the proceedings contrary to section 77(2) of the Constitution and section 198(1) of the Criminal Procedure Code; and failure of the trial Magistrate to evaluate the defence. The Court rejected ground 4, noting the superior court expressly found the Magistrate's judgment wholly inadequate yet fully re-evaluated the evidence itself. On a second appeal, the Court held it must defer to concurrent findings of fact unless there was no evidence at all supporting them. The constitutional and statutory complaints failed on waiver grounds: the issues were never raised before the trial Magistrate or in the first appeal, and applying the principle in JAMES GITHUI WAITHAKA, the appellants were taken to have waived those rights. The Court was satisfied the appellants understood the language of their trial and participated fully. The appeals were wholly dismissed.

Questions the Court framed

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

  1. 1.Whether the first appellate court failed in its duty to analyse and evaluate the evidence on identification before upholding conviction
  2. 2.Whether the appellants were detained for about 40 days before charge in violation of section 72(3) of the Constitution, rendering the charges a nullity
  3. 3.Whether failure to comply with section 77(2) of the Constitution and section 198(1) of the Criminal Procedure Code on interpretation of proceedings rendered the trial a nullity
  4. 4.Whether the trial Magistrate failed to give due consideration to the appellants' defence

Key legal issues

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01

Adequacy of the first appellate court's re-evaluation of evidence

Holding

The first appellate court expressly found the trial Magistrate's judgment wholly inadequate and fully re-evaluated the evidence of the three eyewitnesses before confirming conviction; ground 4 (failure to consider the appellants' defence) also fails

Reasoning

The superior court found the Magistrate had failed to analyze the evidence of the vital prosecution witnesses, but itself reconsidered the evidence and reached its own conclusion that the appellants were properly identified at the scene. The trial Magistrate had accepted the evidence of Anastasia, Samuel and Dominic and rightly rejected the defence of grudge. The first appellate court's conclusions were findings of fact with which the Court of Appeal cannot interfere on second appeal.

p. 5
02

Alleged violation of section 72(3) of the Constitution by detention before charge

Holding

The complaint fails; the right to challenge the delay was waived because it was never raised before the trial Magistrate when the issue could have been referred to the High Court, nor in the first appeal

Reasoning

The charge-sheet did not show the dates of arrest, so the Magistrate could not have known of the delay; no one raised the issue until the appellants gave their final evidence. Counsel appearing earlier in the trial and counsel for the first appellant in the High Court also failed to raise it. Applying the JAMES GITHUI WAITHAKA principle, the appellants waived their right.

p. 5
03

Compliance with section 77(2) of the Constitution and section 198(1) of the CPC on interpretation of proceedings

Holding

The complaint is rejected; the record and conduct of the trial show the appellants understood and fully participated in the trial

Reasoning

The record does not show the language of communication, but advocates appeared at various stages and none complained that an appellant did not understand the language. Each appellant filed written submissions in flowing English, cited authorities, cross-examined witnesses and gave sworn evidence. The Court is satisfied the appellants understood the language of the court.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal is bound by concurrent findings of fact of the two courts below and will interfere only where there is no evidence to support the findings or the evidence is such that no reasonable tribunal could base a decision on it
  • Where an accused's advocate fails to raise the issue of unconstitutionality in the superior court on first appeal, the appellant is taken to have waived the right to raise it on second appeal

Court orders

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  1. 1.The appeals be and are hereby dismissed
  2. 2.A copy of this judgment shall be sent directly to the trial Magistrate so as to avoid unnecessary complaints being raised against his judgments

The bench

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

RO
majority
PW
majority
DA
majority
On appeal from
High Court of Kenya at Meru
H.C. Cr. A. Nos. 225, 230 & 231 of 2002
Jurisdiction invoked
Second and final appeal to the Court of Appeal under the Criminal Procedure Code (Criminal Appeal 166 of 2004; no specific constitutional article is stated in the judgment)

Relief refused

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Reversal of convictions and death sentences on the ground that the first appellate court failed to re-evaluate the identification evidence

The superior court fully went into a reconsideration and re-evaluation of the evidence; on a second appeal the Court defers to concurrent findings of fact absent evidence that none exists or that no reasonable tribunal could act on it

p. 5

Nullification of the trial for breach of section 72(3) of the Constitution (delay before charge)

The complaint was not raised in the trial court or in the first appeal; the right was waived under the principle in JAMES GITHUI WAITHAKA & ANOTHER v REPUBLIC

p. 5

Nullification of the trial for failure to interpret the proceedings into a language the appellants understood

The appellants fully understood the language used, participated fully in the trial, gave written submissions in flowing English, and no advocate raised the language issue at any stage

p. 5

Costs

No costs order is made 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.

we are under legal duty to pay proper homage to the current findings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satisfied that there was no evidence at all upon which such findings were based
p. 5Standard of interference on second appeal
where an advocate fails to raise the issue of the unconstitutionality in the superior court in particular, the appellant must be taken to have waived his right to do so
p. 5Waiver of constitutional complaints not raised on first appeal
we are satisfied the appellants fully understood the language used in their trial and they fully participated in the trial
p. 5Language of trial
Accordingly these appeals wholly fail and we order that they be and are hereby dismissed
p. 6Disposition

Issues in the judgment

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minor

The coram of the trial court's first appeal is stated as 'High Court of Kenya at Meru' in the title but the body says each appellant appealed to the High Court at Nyeri

minor

The constitutional case relied on (JAMES GITHUI WAITHAKA, Cr. Appeal No. 115 of 2007) is dated 2007 yet this is a 2004 appeal decided in 2010; the judgment does not explain the timing but this is not internally contradictory

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Boniface Kamande & 2 others v Republic [2010] KECA 209 (KLR)", Case Analysis (2010). Criminal Appeal 166 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/209/eng@2010-06-25

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