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Court of AppealDismissedCriminal Appeal No. 173 of 2010· [2013] KECA 157 (KLR)

Kennedy Ochieng Olunga v Republic [2013] KECA 157 (KLR)

Court of Appeal of Kenya
4 October 2013
JOJ. W. Onyango OtienoFAF. AzangalalaSKS. ole Kantai
2,518 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a robbery conviction appeal, confirming that second appeals can only challenge points of law, not re-argue facts already decided by lower courts.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate at Homa Bay of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court at Kisii (Musinga and Muchelule, JJ) was dismissed by judgment dated 10 December 2009, prompting this second appeal. The Court of Appeal (Onyango Otieno, Azangalala and Kantai, JJ.A) restated that under Section 361(1)(a) of the Criminal Procedure Code its jurisdiction on a second appeal extends only to matters of law, and it is bound by concurrent findings of fact unless those findings are shown not to be based on evidence. The appellant argued that the charge sheet was defective, that recognition of the appellant occurred in poor lighting conditions, that the name of the appellant was not reported immediately to police, and that the evidence of the child witnesses lacked corroboration and that the first appellate court failed to re-evaluate the evidence. The court found that the first appellate judges had properly evaluated the evidence, that recognition by witnesses who knew the appellant from the locality and family was more reliable than identification of a stranger (applying Anjononi v Republic), and that the evidence of the two minors, PW2 and PW3, was corroborated by their mother PW5, who also knew the appellant. The court distinguished the corroboration exception now applicable to sexual offences under Section 124 of the Evidence Act as altered by the Sexual Offences Act. Finding no merit in the appeal, the court dismissed it, affirming the conviction and sentence. No separate costs order was made. The judgment is a single judgment of the full bench with no dissents.

Key legal issues

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01

Scope of second appeals under Section 361(1)(a) Criminal Procedure Code

Holding

The Court of Appeal on a second appeal deals only with matters of law and is bound by concurrent findings of fact unless shown not to be based on evidence.

Reasoning

The court restated the settled position from Thiongo v Republic and Njoroge v Republic: a second appeal does not permit re-litigation of facts already tried and re-addressed by the first appellate court. The jurisdiction is confined to points of law, which in this case meant the alleged defects in the charge sheet, identification, and corroboration.

p. 1
02

Identification by recognition in unfavourable conditions

Holding

Recognition by witnesses who knew the appellant before, aided by torchlight, was reliable and sufficient to sustain conviction.

Reasoning

Relying on Anjononi v Republic, the court accepted that recognition based on prior personal knowledge is more reliable than identification of a stranger. PW2 recognised the appellant when he shone a torch on her face while pursuing her, and PW3 and PW5 also knew him from the locality; the first appellate court properly evaluated this evidence.

p. 3
03

Corroboration of evidence of child witnesses

Holding

Evidence of minors required corroboration (except in sexual offences) and in this case it was corroborated by PW5, the children's mother, who also knew the appellant.

Reasoning

The court noted Section 124 of the Evidence Act and that the Sexual Offences Act 2006 removed the corroboration requirement only for sexual offences where the court is satisfied the victim is telling the truth. In this robbery case, the child witnesses' identification of the appellant by name during the attack was heard by PW1, PW3 and PW5, amounting to proper corroboration.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the lower courts unless those findings are shown not to be based on evidence.
  • Recognition of an assailant by a witness who knows them is more satisfactory, more assuring and more reliable than identification of a stranger.
  • The evidence of a minor in a criminal case other than a sexual offence requires corroboration by other material evidence implicating the accused.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The findings of the trial magistrate as confirmed by the first appellate court are upheld
On appeal from
High Court of Kenya at Kisii
HCCRA No. 145 of 2007
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code - second appeal on matters of law only

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, "Kennedy Ochieng Olunga v Republic [2013] KECA 157 (KLR)", Case Analysis (2013). Criminal Appeal No. 173 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/157/eng@2013-10-04

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