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Court of AppealDismissedCriminal Appeal No. 482 of 2007· [2013] KECA 270 (KLR)

Peter Sabem Leitu v Republic (Criminal Appeal 482 of 2007) (Crim) [2013] KECA 270 (KLR)

Court of Appeal of Kenya
20 September 2013
PKP. Kihara KariukiWilliam OukoW. OukoAMA. K. Murgor
3,015 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 a robbery conviction and death sentence, ruling that technical flaws in the trial caused no real unfairness to the accused.

What this practically means

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Executive summary

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The appellant was convicted of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death by the Senior Resident Magistrate at Makadara for the robbery of Ksh. 112,237.70 at Mini Bakery, Industrial Area, Nairobi on 15th March 1999. His first appeal to the High Court (Lessit and Ochieng, JJ) was dismissed on 19th October 2004. On this second appeal, the Court of Appeal (Kihara Kariuki, P, Ouko and Murgor, JJ.A) was confined to points of law under Section 361 of the Criminal Procedure Code. The appellant argued that the trial was a nullity because a police constable, P.C. Wanjohi, had come on record as prosecutor contrary to Section 85(2) of the Criminal Procedure Code; that the charge sheet was defective because the named complainant, Ghosh Sukhendu, was neither robbed nor a witness to the robbery; and that his constitutional rights were infringed by detention for 22 days before arraignment. The court held that the nullity rule applies only where an incompetent officer actually prosecutes, and since the appellant merely gave unsworn testimony when P.C. Wanjohi appeared, with no witnesses called or examined, there was no prosecution in the Elirema sense. The charge sheet defect occasioned no miscarriage of justice: the particulars clearly stated the offence, and under Section 137(d) the complainant's name need not be given. On the detention, the court held that pre-trial liberty violations should be pursued through habeas corpus or compensation, not acquittal, which would be a disproportionate and draconian remedy. Bound by the concurrent findings of fact that the appellant was caught in the course of the robbery, the court dismissed the appeal in its entirety.

Key legal issues

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01

Whether a charge sheet naming a non-victim as complainant is fatally defective

Holding

The defect was not fatal: the charge stated a specific offence with clear particulars of date, place, manner and property stolen, and the person from whom the money was stolen testified and was cross-examined, so no prejudice or miscarriage of justice arose.

Reasoning

The court applied Section 134 of the Criminal Procedure Code on the required particulars and Section 137(d), which permits description of persons without their correct names. The stolen money belonged to Mini Bakery rather than the named complainant, and the special owner was PW3. The appellant knew the charge he faced and could test the evidence, so the mix-up occasioned no failure of justice.

p. 4
02

Whether breach of the constitutional right to be brought to court promptly warrants an acquittal

Holding

No. The criminal trial court and appellate courts on appeal should not adjudicate on pre-trial liberty violations; the remedies are habeas corpus and compensation, and acquittal is a disproportionate remedy.

Reasoning

Relying on Julius Kamau Mbugua v Republic, the court held the duty to secure liberty rights lies on the police, with remedies of habeas corpus under Section 389(1)(a) of the Criminal Procedure Code and damages under Section 72(6)/Section 84(1) of the former Constitution. The prosecution gave no explanation for the 22-day delay, likely due to the appellant's hospitalisation, but acquittal would compromise public security.

p. 5
03

Whether a trial prosecuted in part by a police officer below the rank of Assistant Inspector of Police is a nullity

Holding

The nullity rule applies only where the incompetent officer actually prosecutes. P.C. Wanjohi merely sat when the appellant gave unsworn testimony; no witnesses were called or examined and he did not address the court, so there was no prosecution and no nullity.

Reasoning

The court applied Ingute, Elirema and Ahmed Anakeya Mohamed, distinguishing Elirema on the basis that nothing of substance took place when the appellant testified. Because the appellant gave unsworn evidence requiring no cross-examination and the officer made no address, the presence of the officer did not violate Section 85(2) of the Criminal Procedure Code.

p. 5
04

Whether the evidence sufficed to sustain the conviction on a second appeal

Holding

Yes. Both courts below concurrently and correctly found the appellant was arrested while engaged in the commission of the robbery; on a second appeal the court is bound by those concurrent findings of fact.

Reasoning

PW5 and PW6 identified the appellant as the robber caught at the scene, and the appellant's own unsworn account placed him being apprehended near Mini Bakery. Findings of fact are not open to the Court of Appeal on a second appeal under Section 361 of the Criminal Procedure Code unless based on no evidence.

p. 6

Legal principles established

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  • On a second appeal the Court of Appeal is confined to points of law and is bound by concurrent findings of fact of the lower courts unless those findings are based on no evidence.
  • A criminal trial conducted by a police officer below the rank of Assistant Inspector of Police is a nullity, but only where that officer actually prosecuted the case - i.e. called and examined witnesses.
  • Where no witnesses are called and examined at a sitting presided over by an incompetent prosecutor, there is no prosecution and the Elirema nullity rule does not apply.
  • An appellate court dealing with a criminal appeal should not adjudicate on violations of the right to personal liberty that occurred before the criminal court assumed jurisdiction; compensation is the appropriate remedy, not acquittal.
  • A mismatch between the named complainant in a charge sheet and the actual victim is not fatal where the particulars of the offence are clear and no prejudice or miscarriage of justice is occasioned; under Section 137(d) of the Criminal Procedure Code the complainant's name need not be stated.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Conviction and sentence of death upheld

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 295
  • Criminal Procedure Code, Cap 75Section 361
  • Criminal Procedure CodeSection 85(2)
  • Criminal Procedure CodeSection 86
  • Criminal Procedure CodeSection 382
  • Criminal Procedure CodeSection 134
  • Criminal Procedure CodeSection 137(d)
  • Criminal Procedure CodeSection 389(1)(a)
  • The Constitution of Kenya (former)Section 77(2)(f)
  • The Constitution of Kenya (former)Section 72(3)
  • The Constitution of Kenya (former)Section 72(6)
  • The Constitution of Kenya (former)Section 71(1)
  • The Constitution of Kenya (former)Section 84(1)
  • Statute Law (Miscellaneous Amendments) Act No. 7 of 2007

Cases cited (7)

  • Njoroge -vs- Republic
    (1982) KLR 388
  • M'Riungu -vs- Republic
    (1983) KLR 455
  • Isaac Omambia V. Republic
    [1995] eKLR
  • Julius Kamau Mbugua Vs Republic
    [2010] eKLR
  • Ingute & Another V. Republic
    [2002] LLR 4606
  • Elirema & Another v. Republic
    [2003] KLR 537
  • Ahmed Anakeya Mohamed & Another v R
    Mombasa Criminal Appeal No. 161 of 2004 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 89 of 2000
Jurisdiction invoked
Section 361 of the Criminal Procedure Code, Cap 75 (second appeal limited to points of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Peter Sabem Leitu v Republic (Criminal Appeal 482 of 2007)  (Crim) [2013] KECA 270 (KLR)", Case Analysis (2013). Criminal Appeal No. 482 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/270/eng@2013-09-20

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