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Court of AppealDismissedCriminal Appeal No. 102 of 2013 (R)· [2014] KECA 712 (KLR)

James Kamau Waweru v Republic [2014] KECA 712 (KLR)

Court of Appeal
14 March 2014
1,923 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a robbery convict's appeal, ruling constitutional rights violations must be claimed separately for compensation, not used to overturn convictions.

What this practically means

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Executive summary

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The appellant was convicted by the Chief Magistrate's Court at Thika on two counts of robbery with violence (sentenced to death), and on possession of a firearm and seven rounds of ammunition without certificates (sentenced to ten years' imprisonment). The High Court (Ochieng & Achode, JJ.) dismissed his first appeal, holding the second death sentence and the ten-year term in abeyance since a person cannot suffer death twice. On second appeal before the Court of Appeal (Musinga, Gatembu Kairu and J. Mohammed, JJ.A.), counsel raised three grounds: procedural flaws in the identification parade, failure by the first appellate court to re-evaluate the evidence, and contravention of the right to a fair trial through a delay of about 22 days in arraignment contrary to sections 72(3)(b) and 77(1) of the repealed Constitution. The Court reiterated that on a second appeal it is confined to matters of law under section 361(1) of the Criminal Procedure Code and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles. It found no procedural flaw in the identification parade, held that the first appellate court properly discharged its duty of re-evaluation, and held the charge was not defective for cancelling the words 'immediately before or immediately after'. On the constitutional complaint, the Court held that an appeal cannot be allowed on the basis of a constitutional violation; the remedy lies in a claim for compensation before the High Court under section 72(6) of the repealed Constitution. The appeal was dismissed in its entirety.

Key legal issues

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01

Scope of a second appeal under Section 361(1) of the Criminal Procedure Code

Holding

The Court on a second appeal considers only matters of law and will not disturb concurrent findings of fact absent no evidence, misapprehension of evidence, or wrong principles.

Reasoning

Section 361(1) of the Criminal Procedure Code confines a second appeal to matters of law. Following Chemagong v Republic, the Court will not interfere with concurrent findings of the trial court and first appellate court unless those findings rest on no evidence, a misapprehension of the evidence, or the courts below applied wrong principles. This preserved the factual findings on identification.

p. 1
02

Whether the identification parade was procedurally flawed

Holding

No procedural flaw; both witnesses described distinctive features, identified the appellant in broad daylight, and the appellant did not cross-examine the parade officer.

Reasoning

PW1 and PW2 had described the appellant's twisted left ear and facial mark to the police and identified him in broad daylight. The officer conducting the parade explained the exercise in detail, nine persons were paraded, and the appellant's failure to cross-examine PW7 implied he did not dispute the evidence. The trial court also concurred with the witnesses' descriptions.

p. 3
03

Whether the first appellate court discharged its duty to re-evaluate the evidence

Holding

It did; the High Court carefully analysed all the evidence and reached its own conclusion as required by Okeno v Republic.

Reasoning

The Court perused the judgment of the first appellate court and was satisfied that the learned judges discharged the legal burden of a first appellate court as required by Okeno v Republic, carefully analysing all the evidence and coming to their own conclusion. The contention that they merely upheld the trial court's conclusions failed.

04

Whether the charge was defective for cancelling the words 'immediately before or immediately after'

Holding

The charge was not defective; cancelling those words made the charge more specific, locating the threat of violence at the time of the robbery.

Reasoning

Sections 134 and 137 of the Criminal Procedure Code govern the framing of charges. The police, by cancelling the words 'immediately before or immediately after', specified that the threat of violence occurred at the time of the robbery. There is nothing wrong in specifying the exact manner or time of the threat, so the charge complied with the Code and the second ground was rejected.

p. 3
05

Whether the 22-day delay in arraignment contravened the right to a fair trial

Holding

The violation could not ground an allowance of the appeal; it was not raised at the earliest opportunity and the remedy is compensation before the High Court under section 72(6) of the repealed Constitution.

Reasoning

The appellant was arrested on 18th August 2004 and arraigned on 8th September 2004, a period of 22 days beyond the 14-day requirement, with the burden of explanation on the prosecution. However, the ground ought to have been raised at trial, and under section 72(6) of the repealed Constitution the remedy for violation is damages from the High Court, not allowing an appeal. This accords with Joseph Onyango Owuor & Another v Republic.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
  • A criminal appeal cannot be allowed on the basis of violation of a constitutional right; the remedy is a separate claim for compensation before the High Court under the repealed Constitution.
  • A charge of robbery with violence is not defective merely because the words 'immediately before or immediately after' are cancelled; specifying that the threat of violence occurred at the time of the robbery is permissible.

Court orders

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  1. 1.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Criminal Procedure CodeSection 361(1)
  • Criminal Procedure CodeSections 134 and 137
  • Constitution of Kenya (repealed)Sections 72(3)(b), 72(6) and 77(1)

Cases cited (3)

  • CHEMAGONG v REPUBLIC
    [1984] KLR 611
  • OKENO v REPUBLIC
    [1972] E.A. 32
  • JOSEPH ONYANGO OWUOR & ANOTHER v REPUBLIC, Criminal Appeal No. 353 of 2008
On appeal from
High Court of Kenya at Nairobi
H.C. CR. A. 41 of 2008
Jurisdiction invoked
Second appeal under Section 361(1) of the Criminal Procedure Code, confining the Court 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, "James Kamau Waweru v Republic [2014] KECA 712 (KLR)", Case Analysis (2014). Criminal Appeal No. 102 of 2013 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/712/eng@2014-03-14

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