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Court of AppealDismissedCriminal Appeal 58 of 2007· [2010] KECA 291 (KLR)

Paul Kihara Kariuki v Republic

Court of Appeal of Kenya
14 May 2010
1,539 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 a second appeal cannot re-open facts already settled by two lower courts, and upheld the robbery conviction and sentence.

What this practically means

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Executive summary

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The appellant, Paul Kihara Kariuki, was tried before a Senior Resident Magistrate at Karatina on three counts of robbery with violence contrary to section 296(2) of the Penal Code arising from attacks on bars at Kiaruhiu and Gatondo Trading Centres. He was acquitted on the first count under section 210 of the Criminal Procedure Code but convicted on counts two and three following the robbery of Nancy Njeri Mubuchi and James Kagwe Gakuya on 30th April, 2003. The appellant was arrested shortly after the robbery at Gatondo Primary School while in possession of a radio cassette later identified as stolen from the bar, wearing a black leather jacket and green hat described by a witness, and carrying coins. His defence of innocent passage was disbelieved. The High Court at Nyeri (Khamoni & Okwengu, JJ.) dismissed his first appeal, holding the conviction and sentence proper. On second appeal, the Court of Appeal (Omolo, Waki and Aganyanya, JJ.A.) held that the complaint about inconsistencies in the prosecution evidence was really a complaint about how the trial court recorded evidence, and that the only reasonable conclusion from the recorded evidence was that the appellant was caught in possession of the stolen radio. The Court declined to interfere with the concurrent findings of fact of the two courts below, found the sentence lawful, and dismissed the appeal in its entirety on 14th May, 2010.

Key legal issues

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01

Appellate interference with concurrent findings of fact on a second appeal

Holding

The Court declined to disturb the concurrent findings of fact of the trial magistrate and the first appellate court because the findings were wholly based on the recorded evidence.

Reasoning

The Court reviewed the evidence of the chase, the arrest of the appellant at Gatondo Primary School, and recovery of the radio cassette and jacket. It found the only reasonable inference was that the appellant was one of the three robbers. Since the complaint went only to how the trial court recorded evidence, and both lower courts had made clear concurrent findings on that evidence, there was no basis for interference on a second appeal.

p. 2
02

Lawfulness of the sentence

Holding

The sentence imposed on the appellant, as clarified by the superior court, was lawful.

Reasoning

The appellant had been convicted of robbery with violence contrary to section 296(2) of the Penal Code. The Court found nothing objectionable in the sentence as clarified by the High Court on first appeal and therefore did not disturb it.

p. 3

Legal principles established

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  • A second appellate court will not interfere with concurrent findings of fact made by the two courts below where those findings are wholly based on the recorded evidence.

Court orders

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  1. 1.The appeal be and is hereby dismissed
  2. 2.The conviction and sentence imposed by the courts below to stand
On appeal from
High Court of Kenya at Nyeri
H.C.Cr.A. No. 400 of 2003
Jurisdiction invoked
First appellate/appellate jurisdiction under the Criminal Procedure Code over a conviction on robbery with violence contrary to section 296(2) of the Penal Code

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, "Paul Kihara Kariuki v Republic", Case Analysis (2010). Criminal Appeal 58 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/291/eng@2010-05-14

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