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Court of AppealDismissedCriminal Appeal No. 497 of 2007· [2011] KECA 406 (KLR)

Macharia v Republic (Criminal Appeal 497 of 2007) [2011] KECA 406 (KLR)

Court of Appeal of Kenya
18 March 2011
EOE. O. O'KubasuPWP. N. WakiAVAlnashir Visram
6,988 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that accused persons in capital cases now have a right to state-funded lawyers, but this right does not apply to old cases.

What this practically means

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Executive summary

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This was a second and final appeal by David Njoroge Macharia against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and sentence of death, imposed by the Chief Magistrate's Court at Kibera and upheld by the High Court (Lesiit and Dulu, JJ) on 24th May 2007. The Court of Appeal (O'Kubasu, Waki and Visram, JJ.A) dismissed the appeal in its entirety. On the conventional grounds, the Court reaffirmed that a second appeal lies on matters of law only and that it will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles. It found that the superior court had properly re-evaluated the evidence under Selle and Okeno, and that the doctrine of recent possession - the appellant having sold the stolen phone the day after the robbery and led police to the stolen coat - correctly supported the inference that he was the robber. On the novel question, raised for the first time, of whether an accused charged with a serious offence is entitled to legal counsel at state expense, the Court held that under Article 50(2)(h) of the 2010 Constitution, read with Article 2(6) which imports ratified treaties such as the ICCPR, state-funded legal representation is a right where substantial injustice would otherwise result, and persons accused of capital offences have the right to representation at state expense. However, because the appellant was tried under the repealed Constitution, whose section 14 expressly excluded representation at public expense, and the new Constitution is not retroactive, no relief was available to him. The sentencing challenge was overtaken by the presidential commutation of all death sentences to life imprisonment, though the Court endorsed, without deciding, the Mutiso holding that the mandatory death sentence under section 204 of the Penal Code is unconstitutional. The Court directed service of the judgment on the Attorney General and related institutions given its policy and financial implications.

Key legal issues

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01

Whether the superior court discharged its duty as a first appellate court to re-evaluate the evidence

Holding

The superior court complied with the requirements in Selle and Okeno; it considered, evaluated and drew its own conclusions, and there were no material contradictions warranting interference with the concurrent findings

Reasoning

The Court reviewed the superior court's judgment and found it had analysed the evidence of the stolen phone, its serial number matching the complainant's receipt, the sale to PW2, the recovery of the coat led by the appellant, and correctly applied the doctrine of recent possession to infer that the appellant was the robber rather than a handler. No contradictions material enough to disturb the findings were established.

p. 5
02

Whether an accused charged with a serious offence has a right to legal counsel at state expense

Holding

Under the new Constitution, state-funded legal representation is a right where substantial injustice would otherwise result, and persons accused of capital offences have the right to legal representation at state expense; but the right does not apply retroactively

Reasoning

The Court surveyed international norms under the ICCPR, the Banjul Charter and Human Rights Committee jurisprudence, noting that legal assistance in capital cases is axiomatic under international law. Article 50(2)(h) of the 2010 Constitution, together with Article 2(6) importing ratified treaties, guarantees assigned counsel where substantial injustice would result. However, the appellant was tried under the repealed Constitution, section 14 of which expressly excluded representation at public expense, and the new provisions are not retroactive.

p. 10
03

Whether the mandatory death sentence was unconstitutional

Holding

The Court reiterated, without formally deciding, the holding in Godfrey Ngotho Mutiso v Republic that section 204 of the Penal Code providing a mandatory death sentence is antithetical to the constitutional protections against inhuman or degrading punishment and for a fair trial; the issue in this appeal was overtaken by commutation of death sentences to life imprisonment

Reasoning

The Court took judicial notice of the Presidential commutation of all death row sentences to life imprisonment, rendering the sentencing issue moot. It nonetheless quoted with approval the Mutiso decision declaring section 204 of the Penal Code inconsistent with the Constitution to the extent it mandates the death penalty for murder, signalling concurrence with that reasoning for capital offences generally.

p. 11

Legal principles established

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  • In a second appeal, only matters of law fall for consideration and the Court will not interfere with concurrent findings of fact of the two lower courts unless based on no evidence, a misapprehension of the evidence, or wrong principles
  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, making due allowance for having neither seen nor heard the witnesses
  • Under Article 50(2)(h) of the current Constitution, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense
  • The new constitutional right to state-funded legal representation does not apply retroactively to trials conducted under the repealed Constitution, and no automatic retrial follows for those convicted without such representation
  • International treaties and conventions ratified by Kenya form part of the law of Kenya by virtue of Article 2(6) of the Constitution

Court orders

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  1. 1.The appeal on the grounds in the memorandum of appeal filed on 6th June, 2007 was dismissed
  2. 2.The appellant's appeal as a whole was dismissed, conviction and sentence from the High Court affirmed
  3. 3.The Deputy Registrar directed to serve a copy of the judgment on the Attorney General, the Minister of Justice and Constitutional Affairs, the Constitutional Implementation Committee and the Law Reform Commission

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 204
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 211
  • Criminal Procedure Codesection 197
  • Repealed Constitution of Kenyasection 77(1), 77(2)(c), 77(2)(d), 77(2)(e), 14
  • Constitution of Kenya, 2010Article 2(1), 2(5), 2(6), 50(1), 50(2)(c), 50(2)(g), 50(2)(h)
  • International Covenant on Civil and Political Rights (ICCPR)Article 6(2), 14(1), 14(3)(d)
  • African Charter on Human and Peoples' Rights (Banjul Charter)Article 7
  • Banking Actgenerally
  • Constitution sections 71(1) and 74(1) of the repealed Constitutionsection 71(1), 74(1)

Cases cited (21)

  • Chemagong v. R
    [1984] KLR 611
  • Selle v. Associated Motor Boat Co. Ltd.
    [1968] EA 123
  • Okeno v. R.
    [1972] EA 32
  • Abdul Hameed Saif v. Ali Mohamed Sholau
    (1955) 22 E.A.C.A 270
  • Rono v. Rono and Another
    (2008) 1 KLR (G & F) 803
  • Rono v Rono & Another
    [2005] KLR 538
  • Collins vs Jamaica
    Comm No. 356/1989, U. N. doc CCPR/C/47/D/356/1989(1993)
  • Frank Robinson vs Jamaica
    Comm No. 223/1987, U. N. Doc. Supp. No (A/44/40) at 241 (1989)
  • Robinson v Jamaica
    UNHRC Communication no 223/1987
  • Advocats San Frontieres (on behalf of Bwampamye) v. Burundi
    African Commission on Human and Peoples' Rights, Comm No. 231/00 (2000)
  • Benard Lubuto vs Zambia
    Comm No. 390/1990: Zambia 17/11/95 CCPR/C/55/D/390/1990
  • Webby Chisanga vs Zambia
    Comm No. 1132/2002, U. N. doc. CCPR/C/85/D/1132/2002 (2005)
  • Godfrey Ngotho Mutiso vs Republic
    Criminal Appeal No. 17 of 2008
  • Pett v. Greyhound Racing Association
    (1968) 2 All E.R 545
  • Government of the Republic of Namibia and ors. v. Mwilima and ors.
    (2002) (Case no. SA 29/2001)
  • D. Wolf v. Panama
    Communication No. 289/1988
  • Prosecution v. Sam Hinga Norman, Moinina Fofanah and Alieu Kondowa
    Case No. SCSL-04-14-T
  • Pinto v Trinidad and Tobago
    Communication No. 232/1987
  • O. F. v Norway
    Communication No. 158/1983
  • RM & another v Attorney General
    [2006] eKLR
  • In Re The Matter of Zipporah Wambui Mathara
    [2010] eKLR
On appeal from
High Court of Kenya at Nairobi
H. C. Cr. A. No. 71 of 2005
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361 of the Criminal Procedure Code (matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Macharia v Republic (Criminal Appeal 497 of 2007) [2011] KECA 406 (KLR)", Case Analysis (2011). Criminal Appeal No. 497 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/406/eng@2011-03-18

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