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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 35 of 2013· [2014] KECA 6 (KLR)

Charles Eshitemi Bulimo v Republic

Court of Appeal of Kenya
23 October 2014
2,521 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 dismissed a robbery appeal, confirming that second appeals only address legal errors, circumstantial evidence can convict, and Clinical Officers can testify.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu by Charles Eshitemi Bulimo against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the sentence of death imposed by the trial magistrate (D. O. Ogembo) and affirmed by the High Court at Kakamega (Chitembwe and Thuranira, JJ) on 8 November 2012. The Court, comprising Maraga, Azangalala and ole Kantai, JJ.A, in a single judgment of the court, restated that under section 361(1)(a) of the Criminal Procedure Code a second appeal is confined to issues of law, and that concurrent factual findings are not disturbed absent misdirection, absence of evidence or perversity. The appellant argued that the evidence of PW2 to PW4 was uncorroborated circumstantial evidence, that untested blood stains could not found a conviction, and that a Clinical Officer was unqualified to give medical evidence. The Court rejected each submission. It held that the trail of blood from the scene to the appellant's house, his fresh injuries on the hand and eye, his arrest while seeking treatment in Butere, and the recovery of a blood-stained panga and clothes from a pit latrine at his home were relevant facts forming part of the same transaction under section 6 of the Evidence Act. It further held that the three ingredients of robbery with violence are exclusive, not inclusive, and that more than one was proved. Finally, relying on the Clinical Officers (Training, Registration and Licensing) Act, Cap 260, and its own precedents, the Court held there is no law barring a Clinical Officer from testifying. The appeal was dismissed in its entirety.

Key legal issues

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01

Scope of jurisdiction on a second appeal

Holding

The Court's jurisdiction is limited to issues of law; concurrent findings of fact by the two courts below are not disturbed absent misdirection, absence of evidence, or perversity.

Reasoning

The Court invoked section 361(1)(a) of the Criminal Procedure Code and reaffirmed the long-standing line of authority including Njoroge v Republic and Thiongo v Republic. It held it would examine the facts only for purposes of establishing whether points of law arise, and declined to re-evaluate the concurrent findings of the trial magistrate and the High Court.

p. 1
02

Admissibility and sufficiency of circumstantial and blood-trail evidence

Holding

The evidence of the trail of blood was relevant as forming part of the same transaction under section 6 of the Evidence Act, and the whole body of circumstantial evidence proved the charge beyond reasonable doubt.

Reasoning

The complainant was attacked and stabbed one of the robbers; blood trails led from the scene to both the complainant's and the appellant's homes; the appellant was found the same morning with fresh wounds on the hand and eye consistent with the complainant's account, seeking treatment in another district; blood-stained panga and clothes were recovered from a pit latrine at his home. The Court held the first appellate court was entitled to rely on these connected facts.

p. 4
03

Ingredients of robbery with violence

Holding

Section 296(2) Penal Code is satisfied by proof of any one of three exclusive ingredients: arming with a dangerous weapon, acting in company with others, or using personal violence; here more than one was proved.

Reasoning

The Court set out the three alternative limbs of the offence and found that Wilfred was attacked by two people armed with pangas who used actual violence, so the prosecution, required to prove only one ingredient, proved more than one. This also defeated the submission that medical evidence was indispensable to the charge.

p. 4
04

Competence of a Clinical Officer to give medical evidence

Holding

A Clinical Officer is legally entitled to testify on medical matters in criminal trials; the challenge to his competence was without substance.

Reasoning

Relying on section 2 and section 7(4) of the Clinical Officers (Training, Registration and Licensing) Act (Cap 260), which define a clinical officer and entitle registered officers to render medical or dental services in Kenya and to practise for a fee, the Court held there is no law barring a Clinical Officer from testifying, distinguishing nothing and following its prior decisions in Raphael Kavoi Kiilu and Mark Wanjala Wanyama.

p. 5

Legal principles established

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  • A second appeal under section 361(1)(a) Criminal Procedure Code is confined to issues of law; the Court will not interfere with concurrent findings of fact unless there is a misdirection on the facts, findings based on no evidence, or perverse findings.
  • Facts so connected with a fact in issue as to form part of the same transaction are relevant and admissible under section 6 of the Evidence Act.
  • The offence of robbery with violence under section 296(2) of the Penal Code is established where the offender is armed with a dangerous weapon, or is in company with others, or uses personal violence; proof of any one ingredient suffices, and the ingredients are exclusive, not inclusive.
  • There is no law in Kenya barring a Clinical Officer from testifying in court on medical matters; a registered clinical officer is entitled to render medical services and to give evidence.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction and sentence of death as imposed by the trial court and upheld by the High Court stand
On appeal from
High Court of Kenya at Kakamega
Kakamega HCCRA No. 225 of 2010
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code (second appeal limited to matters of law)

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, "Charles Eshitemi Bulimo v Republic", Case Analysis (2014). Criminal Appeal No. 35 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/6/eng@2014-10-23

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