Aggrey Mbai Injaga v Republic [2014] KECA 347 (KLR)

Court of Appeal of Kenya

3 October 2014

PKP. Kihara Kariuki

D. K. Maraga JMJ. Mohammed

1,434 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that an accused who repeatedly delays trial and walks out can be tried in his absence, and lost his appeal.

What this practically means

Executive summary

The appellant, convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, appealed for a second time to the Court of Appeal. His first appeal to the High Court (Ojwang and Warsame, JJ.) had been dismissed, upholding the conviction and affirming the sentence. Before the Court of Appeal, counsel for the appellant argued that his fair-trial rights were infringed on 6th March 2007 when the trial magistrate declined a further adjournment and proceeded with the trial in his absence after invoking section 77(2) of the retired Constitution. Counsel contended that the appellant's statements in court amounted to an application for disqualification of the trial magistrate and an adjournment request, which the magistrate ignored without a ruling, demonstrating bias. The State countered that the appellant had been granted four adjournments to secure counsel, including a last adjournment on 8th January 2007, and that the magistrate lawfully proceeded in his absence. The Court, sitting as a second appellate court under section 361 of the Criminal Procedure Code, confined itself to matters of law and expressed loyalty to the concurrent findings of fact below. It held that the appellant's statements were a further adjournment request, not a recusal application, and that by seeking repeated adjournments and walking out of court, the appellant conducted himself so as to render continuation of the trial in his presence impracticable. No fair-hearing violation was found. The appeal was dismissed on 3rd October 2014. No separate costs order was recorded. The judgment was delivered as a single judgment of the court by Kihara Kariuki (PCA), Maraga and J. Mohammed, JJ.A.

Key legal issues

Scope of second appellate court's jurisdiction

Holding

The Court of Appeal on a second appeal is confined to matters of law and must pay homage to concurrent findings of fact of the courts below.

Reasoning

The court cited section 361 of the Criminal Procedure Code and its own prior decision in Adan Muraguri Mungara vs. Republic, reiterating that interference with concurrent factual findings is permitted only where findings are based on no evidence at all, a perversion of the evidence, or where no reasonable tribunal properly directing itself could arrive at such findings. The single issue of law identified was whether the appellant's fair-trial rights were infringed by the conduct of the trial on 6th March 2007.

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Fair trial where accused is tried in absentia under section 77(2) of the retired Constitution

Holding

No fair-hearing violation arose; the appellant's statements were an adjournment request, not a recusal application, and his conduct rendered trial in his presence impracticable.

Reasoning

The court read the appellant's statements as a further adjournment application, not a disqualification application as counsel urged. Four adjournments had been granted to enable him to engage an advocate, including a final one on 8th January 2007. When that request was declined, the appellant walked out and refused to participate, satisfying section 77(2) of the retired Constitution, which permits trial in absentia where the accused renders continuance in his presence impracticable. The trial court adequately accommodated the appellant throughout.

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Legal principles established

A second appeal lies only on matters of law, and the Court of Appeal is bound by the concurrent findings of fact of the two courts below unless those findings are based on no evidence, a perversion of the evidence, or no reasonable tribunal properly directing itself could reach them.
Under section 77(2) of the retired Constitution, a criminal trial may properly proceed in the absence of an accused who, after being granted adequate opportunity to secure counsel, so conducts himself as to render the continuance of the proceedings in his presence impracticable.

Court orders

1.The appeal is dismissed
2.The conviction and sentence (death) as affirmed by the High Court stand

Authorities

Legislation

Penal Codesection 296(2)
Criminal Procedure Codesection 361
Retired Constitution of Kenyasection 77(2)

Cases cited (1)

Adan Muraguri Mungara vs. Republic
[2010] eKLR (Criminal Appeal No. 347 of 2007)

On appeal from: High Court of Kenya at Nairobi; H. C. Cr. A. No. 354 of 2007
Jurisdiction invoked: Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Aggrey Mbai Injaga v Republic [2014] KECA 347 (KLR)", Case Analysis (2014). Criminal Appeal No. 150 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/347/eng@2014-10-03

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