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Court of AppealDismissedCriminal Appeal No. 111 of 2013· [2015] KECA 695 (KLR)

William Kimani Ndichu v Republic [2015] KECA 695 (KLR)

Court of Appeal of Kenya
22 May 2015
WKW. KaranjaWilliam OukoW. OukoSKS. Gatembu Kairu
3,389 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 confirmed that separate crimes committed at different times can carry consecutive sentences, and dismissed the appeal in full.

What this practically means

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Executive summary

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This is a second appeal by William Kimani Ndichu against the judgment of the High Court (Ochieng, J) of 26 November 2012, which upheld the appellant's convictions by the Senior Resident Magistrate's Court at Kibera on three counts: carnal knowledge against the order of nature contrary to section 162(a) of the Penal Code, defilement contrary to section 8(1)(3) of the Sexual Offences Act, and stealing contrary to section 279(b) of the Penal Code. The High Court quashed only the housebreaking limb of count 3. The trial court had sentenced the appellant to 15, 20 and 3 years respectively, to run consecutively. Before the Court of Appeal (Karanja, Ouko and Gatembu Kairu, JJ.A) the appellant, in person, raised supplementary grounds on identification, corroboration by medical evidence, recovery of the stolen bicycle, the adequacy of the first appellate court's re-evaluation, and the demand that the sentences run concurrently. The respondent opposed, submitting the victims knew the appellant well and the evidence was overwhelming. The Court confined itself to matters of law under section 361(1) of the Criminal Procedure Code. It upheld the concurrent finding on identification, found the sexual offences proved beyond reasonable doubt with medical corroboration, and held that the High Court had properly re-evaluated the evidence, as shown by its quashing of the housebreaking conviction. On sentence, applying the 'same transaction' doctrine, the Court held the three offences were separate transactions committed at different times, so consecutive sentences were lawful, being at or below statutory maxima. The appeal was dismissed in its entirety.

Key legal issues

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01

Scope of the Court's jurisdiction on second appeal

Holding

The Court is restricted to matters of law only under Section 361(1) of the Criminal Procedure Code and cannot revisit findings of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or were plainly wrong

Reasoning

The Court invoked Section 361(1) of the Criminal Procedure Code and the decision in Dzombo Mataza v Republic, reaffirming that questions of fact are for the trial court and first appellate court. The second appellate court's mandate is confined to errors of law.

p. 4
02

Identification of the appellant

Holding

Identification was not in issue because the complainants knew the appellant well as a neighbour and their landlord's son, and the offences were committed in broad daylight; the concurrent finding of proper identification by the courts below was upheld

Reasoning

Both child complainants testified that they knew the appellant well before the offences. The offences occurred in broad daylight after the appellant tricked the children. The Court agreed with the concurrent finding of the two courts below that identification was proper, so that ground of appeal failed.

p. 4
03

Proof of the sexual offences and burden of proof

Holding

The prosecution proved beyond reasonable doubt both that the children were sexually assaulted and that it was the appellant who committed the offences; the children's testimony after voire dire was corroborated by medical reports

Reasoning

The trial magistrate conducted a voire dire examination and was satisfied the child witnesses told the truth. Medical reports and P3 forms produced by two doctors confirmed sexual assault. The Court found the prosecution proved not only the assaults but the appellant's commission of them.

p. 5
04

Duty of the first appellate court to re-evaluate evidence

Holding

The High Court discharged its duty by thoroughly re-evaluating the evidence and arriving at its own conclusion, as demonstrated by its differing finding on housebreaking

Reasoning

The Court found on the record that the learned Judge subjected the evidence to a fresh test. The fact that the Judge quashed the housebreaking limb while upholding the rest demonstrated genuine independent re-evaluation. The ground alleging failure to re-evaluate was dismissed.

p. 5
05

Concurrent versus consecutive sentences

Holding

Sentencing is discretionary and concurrent sentences are the practice only where offences form one transaction; because the three offences were committed at different times against different complainants and were separately planned and executed, consecutive sentences were lawful and not excessive

Reasoning

Relying on Ogolla s/o Owuor, Kenneth Kimani Kamunyu, R v Fulabhai Jethabhai and BMN v Republic, the Court held it could interfere only if the offences formed a single transaction. They did not, being divorced in time, complainants and execution. The defilement sentence was the statutory minimum and the Penal Code count carried a maximum of 21 years, so the sentences were neither unlawful nor excessive.

p. 6

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 by the two courts below
  • An appellate court will not interfere with a lawful sentence unless it was based on wrong principles, overlooked material factors, or is manifestly excessive
  • Where separate and distinct offences are committed in different criminal transactions, even if tried together in one charge sheet, consecutive sentences are lawful; concurrent sentences are the practice only for offences committed in the same transaction
  • Offences constitute the same transaction only where a series of acts are connected by proximity of time, criminality or criminal intent, continuity of action and purpose, or relation of cause and effect

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Convictions and sentences imposed by the trial court and upheld by the High Court affirmed, including consecutive sentences of 15 years, 20 years and 3 years on the three counts

Authorities

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Legislation

  • Penal CodeSection 162(a)
  • Penal CodeSection 279(b)
  • Penal CodeSection 304(1)
  • Sexual Offences Act No. 3 of 2006Section 8(1)(3)
  • Sexual Offences Act No. 3 of 2006Section 11(1)
  • Criminal Procedure CodeSection 361(1)

Cases cited (10)

  • Dzombo Mataza v Republic
    [2014] eKLR (Criminal Appeal No 22 of 2013)
  • Ogolla s/o Owuor v Republic
    [1954] EACA 270
  • R v Shershowsky
    (1912) CCA 28TLR 263
  • Kenneth Kimani Kamunyu v R
    [2006] eKLR
  • R v Fulabhai Jethabhai & Another
    (1946) 13 EACA 179
  • Ng'ang'a v Republic
    (1981) KLR 530
  • Ondiek v Republic
    (1981) KLR 430
  • Rex v Saidi Nsabuga s/o Juma and another
    (1941) 8 EACA 81
  • Nathani v R
    (1965) EA 777
  • BMN v Republic
    [2014] eKLR (Criminal Appeal No. 97 of 2013)
On appeal from
High Court of Kenya at Nairobi
H.C. CR. A. 452 of 2010
Jurisdiction invoked
Second appeal under Section 361(1) of the Criminal Procedure Code, 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, "William Kimani Ndichu v Republic [2015] KECA 695 (KLR)", Case Analysis (2015). Criminal Appeal No. 111 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/695/eng@2015-05-22

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