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Court of AppealDismissedCriminal Appeal No 188 of 2009

Josephat Karanja v Republic [2014] KECA 631 (KLR)

Court of Appeal
4 April 2014
3,753 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 Josephat Karanja's appeal, confirming that second appeals only address legal errors, not a re-hearing of the facts.

What this practically means

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Executive summary

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This was a second appeal by Josephat Karanja against his conviction for attempted robbery with violence contrary to section 297(2) of the Penal Code and death sentence, following concurrent convictions by the Chief Magistrate's Court at Kibera and the High Court (Ojwang & Warsame, JJ) which dismissed his first appeal on 15 July 2008. The Court of Appeal (Mwera, Gatembu Kairu and Mohammed, JJ.A) reiterated that by dint of section 361 of the Criminal Procedure Code, a second appeal is confined to matters of law and the Court will not interfere with concurrent findings of fact unless based on no evidence or wrong principles. The Court rejected all five grounds in the appellant's supplementary memorandum. It held that the absence of a recorded language note or interpreter was not fatal, since the record showed the appellant cross-examined witnesses in Kiswahili, gave his defence, and never complained of lack of understanding. The failure to call the complainant's wife and other potentially material witnesses was not prejudicial; the number of witnesses is irrelevant under section 143 of the Evidence Act, and calling witnesses lies within the prosecutor's discretion absent oblique motive. The charge was proved to the required standard: the appellant, armed with a panga, assaulted the complainant with intent to steal and was apprehended at the scene. The trial court's judgment sufficiently complied with section 169 of the Criminal Procedure Code, and any non-strict compliance would not invalidate the conviction. Proceeding with the trial on a day the appellant claimed illness occasioned no prejudice, as he was not required to testify then and later cross-examined the witness fully. The appeal was dismissed in its entirety, affirming the conviction and sentence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether failure to record the language of the trial court and the absence of an interpreter vitiated the trial
  2. 2.Whether the prosecution's failure to call certain material witnesses (e.g. the complainant's wife) was fatal
  3. 3.Whether the charge under section 297(2) of the Penal Code was proved to the required standard
  4. 4.Whether the trial court's judgment complied with section 169 of the Criminal Procedure Code
  5. 5.Whether the appellant's right to a fair trial was violated by the trial proceeding on a day he claimed to be unwell

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

The Court has jurisdiction only over matters of law and will not disturb concurrent findings of fact absent no evidence or wrong principles

Reasoning

Section 361 limits second appeals to points of law. Relying on Karingo v R and Thiaka v R, the Court reaffirmed that concurrent findings of fact by the trial court and first appellate court stand unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles. The appellant's grounds largely invited the Court to re-evaluate facts, which it declined to do.

p. 5
02

Right to an interpreter / language of the trial

Holding

No violation; the appellant's participation in Kiswahili showed he understood the proceedings

Reasoning

Section 77(2) of the retired Constitution guarantees an interpreter to an accused who cannot understand the language of trial. The record showed the appellant cross-examined prosecution witnesses, gave his defence in Kiswahili, and never complained about language. Absence of a recorded language note was not fatal where comprehension was apparent from the record.

p. 5
03

Non-calling of material witnesses

Holding

Not fatal; calling witnesses is the prosecutor's discretion and no prejudice or oblique motive was shown

Reasoning

Section 143 of the Evidence Act abolishes any numerical requirement of witnesses. The materiality of the uncalled witnesses (notably the complainant's wife) was not demonstrated, and the appellant was caught at the scene. Following Mwangi v R, the court will not interfere with the prosecutor's discretion absent an oblique motive.

p. 6
04

Elements of attempted robbery with violence under section 297(2) of the Penal Code

Holding

The charge was proved: assault with intent to steal, use of actual violence, and arming with a dangerous weapon

Reasoning

The prosecution must show an assault with intent to steal coupled with violence and one of the aggravating features, such as arming with a dangerous weapon. Here the appellant assaulted PW1, demanded KShs.3,000/-, cut his head, and was armed with a panga. His identity was never in doubt as PW1 held him until help arrived.

p. 6
05

Compliance with section 169 of the Criminal Procedure Code

Holding

The trial judgment complied sufficiently; non-strict compliance does not invalidate a conviction

Reasoning

The record showed the trial court set out the evidence, issues for determination and reasons for the finding of guilt. Even where a judgment is not in strict accordance with section 169, the conviction is not invalidated absent prejudice, per Hawaga Joseph Anuanga v R.

p. 6
06

Trial proceeding while the appellant claimed to be unwell

Holding

No violation of rights; the appellant was not required to testify that day and showed no prejudice

Reasoning

The trial court proceeded on 15th August 2006 because PW6 had travelled from Meru and the appellant did not appear sick. The appellant was given a later date to testify, cross-examined PW6 extensively, and the first appellate court found no prejudice. A judicial officer may observe and evaluate an allegation of sickness.

p. 7

Legal principles established

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  • A second appeal to the Court of Appeal is confined to points of law and the Court will not interfere with concurrent findings of fact unless based on no evidence or wrong principles
  • No particular number of witnesses is required to prove a fact; conviction may rest on the evidence of a single witness
  • The calling of witnesses is a matter within the prosecutor's discretion, reviewable only for oblique motive
  • Proceedings will only be nullified for lack of a common language where the record shows the accused did not understand the trial
  • A judgment not in strict compliance with section 169 of the Criminal Procedure Code is not thereby invalidated absent prejudice

Court orders

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  1. 1.Appeal dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCR.A No. 190 of 2007
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)

Relief refused

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Quashing of conviction and sentence for alleged absence of interpreter/unrecorded language

The record showed the appellant understood the proceedings and participated fully

p. 5

Finding that failure to call certain witnesses invalidated the conviction

Materiality of uncalled witnesses not shown; no prejudice demonstrated

p. 6

Interference with concurrent findings of fact

Second appeal confined to matters of law; findings based on sound evidence

p. 7

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 5Scope of second appeal
For the court to nullify proceedings on account of lack of language used during the trial, it should be clear from the record that the accused did not understand what went on during his trial.
p. 5Interpreter and fair trial
Whether a witness should be called by the prosecution is a matter within the discretion of the prosecutor and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.
p. 6Calling of witnesses
We find that the findings of the trial court and the High Court were based on sound evidence. In the circumstances, there is no basis for interfering with those findings. We accordingly dismiss this appeal in its entirety.
p. 7Final orders / disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Josephat Karanja v Republic [2014] KECA 631 (KLR)", Case Analysis (2014). Criminal Appeal No 188 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/631/eng@2014-04-04

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