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Court of AppealDismissedCriminal Appeal No. 20 of 2009· [2014] KECA 847 (KLR)

Wycliff Khatechi & Alfred Kimata Kihonga v Republic

Court of Appeal
31 January 2014
KKKihara KariukiPKP.O. KiageJMJ. Mohammed
2,086 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed two robbery convictions appeals, confirming second appeals only review legal errors, not facts.

What this practically means

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Executive summary

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The two appellants were jointly convicted by the Chief Magistrate's Court at Kibera of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. Their first appeal to the High Court (Ojwang and Dulu JJ.) was dismissed on 11 February 2009. On second appeal to the Court of Appeal (Kihara Kariuki, PCA, Kiage and J. Mohammed, JJ.A), counsel John Swaka argued that the charge sheet was defective and at variance with the evidence, that identification was poor, that the High Court failed to exhaustively re-evaluate contradictory evidence, that vital witnesses were not called, and that the defence was ignored. The State, through ADPP Mary Onudo, maintained the convictions were safe, stressing the daylight attack, the chase, apprehension and recovery, and the curative effect of Section 382 of the Criminal Procedure Code. The court, invoking Section 361 confining second appeals to matters of law, gave due respect to the concurrent factual findings of the two courts below. It found the conviction was based on evidence, that identification was free from possibility of error given the well-lit open field, absence of disguise and the chase-and-arrest process, refused judicial notice of fog never suggested at trial, and held that any discrepancies were minor and immaterial. On uncalled witnesses, applying Bukenya v Uganda and Mwangi v Republic, it held no adverse inference arose since the evidence was overwhelming, the witnesses unnamed and their materiality unshown, and no oblique motive suggested. The appeals were dismissed in their entirety on 31 January 2014.

Key legal issues

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01

Scope of second appellate jurisdiction

Holding

Jurisdiction limited to matters of law; concurrent factual findings respected unless based on no evidence

Reasoning

Section 361 of the Criminal Procedure Code limits second appeals to matters of law. The court endorsed Karingo v R and declined to disturb concurrent findings of the trial court and High Court, giving them due respect while addressing questions of law.

p. 3
02

Identification evidence

Holding

Identification was free from possibility of error given daylight, open field, lack of disguise, and chase-and-arrest

Reasoning

The court found the High Court's evaluation of identification proper. Judicial notice of fog was refused as never suggested at trial. Cogent evidence of conduct, chase and arrest dispelled doubts; discrepancies were minor and immaterial.

p. 3
03

Failure to call vital witnesses

Holding

No adverse inference; uncalled witnesses unnamed, materiality unshown, evidence overwhelming, no oblique motive

Reasoning

Applying Bukenya v Uganda, adverse inference requires barely adequate evidence. Here evidence was overwhelming. Mwangi v Republic confirms calling witnesses is the prosecutor's discretion absent oblique motive. The uncalled crowd members would have added nothing.

p. 4
04

Variance between charge and evidence

Holding

Any variance was minor and immaterial, curable and occasioning no prejudice

Reasoning

The State relied on Section 382 of the Criminal Procedure Code as curative of variances. The court treated the differences in weapon description and locus as minor discrepancies that did not dilute the probative force of the evidence.

p. 3

Legal principles established

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  • A second appeal is confined to points of law and the court will not interfere with concurrent findings of fact unless based on no evidence
  • Adverse inference from uncalled witnesses arises only where the evidence tendered is barely adequate
  • Whether to call a witness is within the prosecutor's discretion, interferable only for oblique motive

Court orders

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  1. 1.The appeals by the two appellants are dismissed in their entirety

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 382

Cases cited (4)

  • Reuben Karari s/o Karanja V. Republic
    [1950] 17 EACA 146

    Test on second appeal is whether there was any evidence on which the trial court could find as it did

  • OKENO Vs. R
    [1972] E.A 32

    Duty of first appellate court to thoroughly re-appraise and re-evaluate evidence

  • BUKENYA AND OTHERS Vs. UGANDA
    [1972] 594

    Adverse inference from uncalled material witnesses where evidence is barely adequate

  • MWANGI Vs. REPUBLIC
    [1984] KLR E.A 595

    Calling witnesses is within prosecutor's discretion absent oblique motive

On appeal from
High Court of Kenya at Nairobi
H.C.CR.A No. 483 of 2005
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal confined 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, "Wycliff Khatechi & Alfred Kimata Kihonga v Republic", Case Analysis (2014). Criminal Appeal No. 20 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/847/eng@2014-01-31

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