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Court of AppealDismissedCriminal Appeal No. 378 of 2012· [2014] KECA 22 (KLR)

Barson Stephen Meshack v Republic [2014] KECA 22 (KLR)

Court of Appeal of Kenya
26 June 2014
2,068 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot revisit facts on a second appeal, upholding a robbery conviction and death sentence.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Mombasa by Barson Stephen Meshack against his conviction on one count of robbery with violence contrary to section 296(2) of the Penal Code and the resultant death sentence. Following a robbery at Likizo Cottages, Msambweni on 10th March 2009, the appellant was arrested at the scene after falling while fleeing. The trial court acquitted him on three counts for want of complainant testimony but convicted him on count four. The High Court (Odero and Nzioka, JJ.) dismissed his first appeal in its entirety. Before the Court of Appeal, counsel argued the appellant was identified only by the T-shirt he wore, which was not tendered in evidence, and that his defence that he was hijacked by the thugs was not adequately considered. The Court (Okwengu, Asike-Makhandia and Sichale, JJ.A.) held that its jurisdiction on a second appeal is confined by section 361 of the Criminal Procedure Code to matters of law. The identification issue was a non-issue because the appellant conceded he was arrested at the locus in quo. His defence of being a victim of circumstances had been considered and rejected by both courts below as fanciful, and those concurrent findings of fact attracted no interference. The appeal was dismissed in its entirety on 26th June 2014. No separate opinions were written and no costs order was recorded.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

The Court's jurisdiction is delimited and ring-fenced by section 361 of the Criminal Procedure Code, extending only to matters of law; findings of fact by the courts below are presumed adequately evaluated.

Reasoning

The Court emphasised that on a second appeal it cannot re-evaluate facts, the assumption being the two courts below adequately did so. The only arguable issue of law raised was identification of the appellant, which the Court held was a non-issue since the appellant conceded he was arrested at the scene of crime.

p. 3
02

Identification of the appellant and the defence of being a victim of circumstances

Holding

The identification issue failed because the appellant was arrested at the locus in quo; his hijacking defence was rightly rejected as fanciful by both courts below, whose concurrent factual findings the Court of Appeal would not disturb.

Reasoning

Both courts below had considered and rejected the appellant's claim that he was kidnapped by the thugs, reasoning that robbers would not burden themselves with a drunk stranger. The Court of Appeal held that the matter was one of credibility, a question of fact, and the courts below had chosen the prosecution's account, which was the right choice on the evidence.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law; it will not interfere with concurrent findings of fact by the two courts below absent a basis for interference.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Conviction on count four and the sentence of death imposed by the trial court, as affirmed by the High Court, stand

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 215
  • Criminal Procedure Codesection 361
On appeal from
High Court of Kenya at Mombasa
H.C.Cr.A. No. 286 of 2010
Jurisdiction invoked
Section 361 of the 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, "Barson Stephen Meshack v Republic [2014] KECA 22 (KLR)", Case Analysis (2014). Criminal Appeal No. 378 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/22/eng@2014-06-26

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