Josephat Karanja v Republic [2014] KECA 631 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to record the language of the trial court and the absence of an interpreter vitiated the trial
- 2.Whether the prosecution's failure to call certain material witnesses (e.g. the complainant's wife) was fatal
- 3.Whether the charge under section 297(2) of the Penal Code was proved to the required standard
- 4.Whether the trial court's judgment complied with section 169 of the Criminal Procedure Code
- 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
#Scope of a second appeal under section 361 of the Criminal Procedure Code
The Court has jurisdiction only over matters of law and will not disturb concurrent findings of fact absent no evidence or wrong principles
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.
Right to an interpreter / language of the trial
No violation; the appellant's participation in Kiswahili showed he understood the proceedings
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.
Non-calling of material witnesses
Not fatal; calling witnesses is the prosecutor's discretion and no prejudice or oblique motive was shown
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.
Elements of attempted robbery with violence under section 297(2) of the Penal Code
The charge was proved: assault with intent to steal, use of actual violence, and arming with a dangerous weapon
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.
Compliance with section 169 of the Criminal Procedure Code
The trial judgment complied sufficiently; non-strict compliance does not invalidate a conviction
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.
Trial proceeding while the appellant claimed to be unwell
No violation of rights; the appellant was not required to testify that day and showed no prejudice
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.
Legal principles established
#- 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
#- 1.Appeal dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#Quashing of conviction and sentence for alleged absence of interpreter/unrecorded language
The record showed the appellant understood the proceedings and participated fully
Finding that failure to call certain witnesses invalidated the conviction
Materiality of uncalled witnesses not shown; no prejudice demonstrated
Interference with concurrent findings of fact
Second appeal confined to matters of law; findings based on sound evidence
Costs
No costs order made in the judgment
Quotable passages
#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.
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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- C K v T K M [2016] KECA 102 (KLR)[2016] KECA 102 (KLR)30 Sept 2016
- Josephine v Attorney General (Criminal Appeal 128 of 2009) [2015] KECA 407 (KLR)[2015] KECA 407 (KLR)25 Sept 2015followed
Cite this brief
#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.