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Court of AppealPartially AllowedCriminal Appeal 206 of 2006

Simon Njoroge Kabui & another v REPUBLIC [2010] KECA 255 (KLR)

Court of Appeal of Kenya
11 June 2010
2,344 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 robbery convictions but quashed firearm convictions and ruled no one can be sentenced to death twice for the same crime spree.

What this practically means

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Executive summary

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This is a second and final appeal before the Court of Appeal at Nakuru against the dismissal by the High Court (Musinga & Kimaru, JJ) of the appellant's first appeal against convictions for two counts of robbery with violence and related firearm and ammunition offences. During the pendency of the appeals the second appellant escaped from prison custody, so the judgment concerns Simon Njoroge Kabui alone. Two grounds of law were argued: that the trial Magistrate failed to record the language used, and that the first appellate court failed to re-evaluate the evidence as required by Okeno vs. Republic. The Court held that although the Magistrate's failure to record language was a careless omission contrary to section 198 of the Criminal Procedure Code, the record showed the appellant fully understood and participated in the proceedings. On the second ground, the Court found the High Court had discharged its duty, tracing an unbroken chain of events and rejecting the alibi. Applying the rule that a second appeal defers to concurrent findings of fact unless based on no evidence, the Court dismissed the appeal against the robbery convictions. However, because the High Court had allowed the appeal on the firearm and ammunition counts without formally quashing the convictions, this Court quashed the convictions on counts three and four and set aside the imprisonment sentences. It also set aside the death sentence on count two, holding that a man cannot be hanged twice over, and directed that a copy of the judgment be made available to the trial Magistrate.

Questions the Court framed

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

  1. 1.Whether the failure of the trial Magistrate to record the language in which the accused and witnesses spoke meant the appellant did not understand the proceedings
  2. 2.Whether the first appellate court failed to re-evaluate and reappraise the evidence itself before affirming the trial court's judgment

Key legal issues

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01

Recording of language at trial

Holding

Although the omission was careless and contrary to section 198 of the Criminal Procedure Code, the failure to record language did not in the circumstances mean the appellant did not understand the proceedings; he participated fully, cross-examined witnesses and made a detailed defence statement.

Reasoning

The court noted the accused and co-accused bore names from the same community and spoke the same language; counsel for a co-accused never raised any language difficulty; the appellant cross-examined at length, sought and obtained an adjournment when unwell, and gave a detailed statement addressing the prosecution evidence. The record therefore belied the claim of non-comprehension, though the court cautioned the Magistrate over the omission.

p. 2
02

Duty of first appellate court

Holding

The High Court discharged its Okeno duty; its findings showed an unbroken narration of events and rejection of the alibi, leaving no basis for a complaint that it failed to re-evaluate the evidence.

Reasoning

The superior court's judgment expressly traced the chain of events from the lift to the hijacking, killing, chase and arrest, and found the evidence overwhelming and unrebutted by the alibi. On a second appeal the court defers to concurrent factual findings supported by evidence; the appellant's complaint amounted only to saying he should have been believed over the prosecution witnesses, which is not a question of law.

p. 4
03

Firearm and ammunition counts

Holding

The High Court had allowed the appeal on the firearm and ammunition counts but omitted to formally acquit; this Court completed the process by quashing those convictions and setting aside the imprisonment sentences.

Reasoning

The first appellate court was not satisfied the firearm and ammunition charges were proved but failed to formally acquit the appellant. Because a second appeal is confined to law and the defect was a formal one left unattended by the superior court, this Court quashed the convictions on counts three and four and set aside the sentences of imprisonment on those counts.

p. 4
04

Duplication of death sentences on two robbery counts

Holding

Only one death sentence could stand; the sentence on count two was set aside, leaving the death sentence on count one.

Reasoning

The Magistrate had sentenced the appellant to death on each of the two robbery counts and the superior court confirmed both. Since a person cannot be executed twice for offences arising in this way, the Court set aside the sentence on count two and dismissed the appeal on sentence save to that limited extent.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal deals with matters of law only and gives deference to concurrent findings of fact by the two courts below unless those findings are based on no evidence or on evidence on which no reasonable tribunal could act.
  • An accused person is entitled to choose the language in which he conducts his case and to have proceedings interpreted in that language, as provided by section 198 of the Criminal Procedure Code, and trial magistrates must record that language.
  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld (the Okeno duty).
  • Where a superior court allows an appeal on some charges but fails to formally quash the convictions and set aside the sentences, the second appellate court may do so.

Court orders

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  1. 1.Appeal against conviction on the two counts of robbery with violence dismissed
  2. 2.Convictions on counts three and four (firearm and ammunition) quashed and the sentences of imprisonment imposed thereon set aside
  3. 3.Sentence imposed on count two set aside (the appellant could not be hanged twice over for the two robbery counts)
  4. 4.A copy of the judgment to be made available to the trial Magistrate

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
H.C.Cr. A. Nos. 316 & 317 of 2002
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second and final appeal on matters of law only

Relief refused

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Quashing of convictions on the robbery with violence counts

Concurrent findings of fact by the two courts below were supported by overwhelming evidence; a second appeal court defers to concurrent findings absent lack of evidence

p. 4

Appeal against sentence on count one

Sentence of death on count one stands; only the sentence on count two was set aside to avoid a double execution

p. 4

Costs

No costs order 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.

The law requires of this Court that on a second appeal it must give deference to the concurrent findings of facts by the two courts below unless it is shown that the findings were either based on no evidence or that the evidence on which they were based was of such a nature that no reasonable tribunal could be expected to act on that evidence.
p. 4Scope of a second appeal - deference to concurrent findings of fact
This Court has repeatedly held that an accused person is entitled to choose a particular language in which he wishes to conduct his case and to have the proceedings interpreted to him in that language.
p. 2Accused's right to language and interpretation under section 198 of the Criminal Procedure Code
We accordingly quash the convictions on counts three and four involving the firearm and the ammunition and set aside the sentences of imprisonment imposed on those counts.
p. 4Final orders - quashing of firearm and ammunition convictions
A man cannot be hanged twice over and we now order that the sentence imposed on count two is set aside and save to that limited extent the appeal as regards sentence is also dismissed.
p. 4Final orders - sentence on count two set aside
Those shall be the orders of the Court in the appeal.
p. 4Disposition clause closing the judgment

Issues in the judgment

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minor

The coram lists three Judges of Appeal and the judgment is signed by all three, but the certificate and signature blocks give no indication of which judge authored the single judgment; the attribution of authorship to all three on the basis of 'JUDGMENT OF THE COURT' reflects the collective authorship but individual authorship cannot be determined from the text.

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, "Simon Njoroge Kabui & another v REPUBLIC [2010] KECA 255 (KLR)", Case Analysis (2010). Criminal Appeal 206 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/255/eng@2010-06-11

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