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Court of AppealDismissedCriminal Appeal No. 28 of 2013· [2015] KECA 939 (KLR)

Douglas Kinyua Njeru v Republic

Court of Appeal of Kenya
26 February 2015
4,368 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 a robbery appeal, confirming that second appeals only address legal errors and that state-funded lawyers are now guaranteed in capital cases.

What this practically means

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Executive summary

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The appellant was convicted by the Principal Magistrate's Court at Chuka on four counts of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death, following a gang robbery of businesses in Chuka Town on 26 May 2009. The High Court at Meru (Muga Apondi & Makau, JJ.) set aside the convictions on the first and second counts but upheld those on the third and fourth counts and the death sentence. On second appeal, the Court of Appeal (Visram, Koome & Otieno-Odek, JJ.A.) reiterated that by dint of Section 361 of the Criminal Procedure Code its jurisdiction is confined to matters of law and it will not disturb concurrent findings of fact unless based on no evidence. On the fair-trial ground, the Court held that the trial, having occurred in 2009-2010 under the former Constitution, attracted section 77(14), which expressly denied a right to legal representation at public expense; under Article 50 of the current Constitution, state-funded representation is available where substantial injustice would otherwise result, and, following David Njoroge Macharia, in capital offences. The Court urged Parliament to enact the envisaged legal aid legislation and directed that the judgment be served on the Attorney General, the Constitutional Implementation Committee and the Law Reform Commission. On identification, the Court held that the absence of a prior description of the assailant did not invalidate the parade but went only to weight; on the evidence of SP Morris and the parade form, the parade was properly conducted and the identification evidence safe. Finding the prosecution evidence overwhelming and the appellant's defence displaced, the Court dismissed the appeal in its entirety.

Key legal issues

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01

Scope of second appeal

Holding

Second appeals lie on matters of law only under Section 361 of the Criminal Procedure Code

Reasoning

The Court invoked Section 361 CPC and Karingo v Republic, holding it cannot interfere with concurrent findings of fact of the two lower courts unless those findings are based on no evidence. The test is whether there was any evidence on which the trial court could find as it did.

p. 3
02

Right to legal representation at State expense

Holding

Under the former Constitution there was no right to state-funded representation; under Article 50 of the current Constitution such a right exists where substantial injustice would otherwise result, and in capital cases

Reasoning

The trial took place in 2009-2010 under the former Constitution, whose section 77(14) expressly excluded legal representation at public expense. Article 50(2)(h) of the current Constitution grants state-funded representation where substantial injustice would otherwise result; the Court, following David Njoroge Macharia, extended this to capital offences and urged Parliament to enact legal aid legislation.

p. 5
03

Identification parade without prior description of assailant

Holding

Failure of witnesses to give a prior description does not invalidate the parade; it affects only the weight of the identification evidence

Reasoning

Following Nathan Kamau Mugwe, the Court held that a witness who cannot describe an assailant may still identify him on a properly conducted parade. The relevant consideration is the weight to attach to the parade evidence, not its invalidation.

p. 6
04

Conduct and validity of the identification parade

Holding

The parade was properly conducted and the identification evidence safe

Reasoning

SP Morris testified the appellant was placed among eight persons of similar height and complexion, witnesses waited in a separate room, each was called alone, and the appellant never objected. The parade was held a day after the incident while impressions were fresh, and the parade form was on record.

p. 7
05

Displacement of the appellant's defence

Holding

The prosecution evidence was overwhelming and displaced the appellant's sworn denial

Reasoning

The Court found no evidence that a firearm was recovered from the appellant, so the case rested wholly on identification. Both lower courts made concurrent findings of positive identification, which the Court would not disturb absent absence of evidence.

p. 7

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
  • Failure of a witness to describe the assailant before an identification parade does not necessarily invalidate an otherwise valid parade; it goes to weight
  • Whether a parade is so irregular as to be disregarded is a question of degree depending on the circumstances of each case
  • Under the current Constitution an accused is entitled to state-funded legal representation where substantial injustice would otherwise result, and persons accused of capital offences have the right to legal representation at state expense

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Deputy Registrar to formally serve a copy of the judgment on the Attorney General, the Constitutional Implementation Committee and the Law Reform Commission

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Criminal Procedure CodeSection 361
  • Constitution of Kenya (former)Section 77(1), (2)(a), (d), (e), (14)
  • Constitution of Kenya, 2010Article 50(1), 50(2)(a), (g), (h); Article 2(6); Chapter 18
  • Police ActSection 5
  • Police Force Standing OrdersStanding Order 6(iv)(d) and (n)

Cases cited (12)

  • Karingo –vs- Republic
    (1982) KLR 213

    Second appeals confined to points of law; no interference with concurrent findings of fact unless based on no evidence

  • Reuben Karari C/O Karanja –vs- R
    (1956) 17 EACA 146

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

  • Charo Karisa Thoya –vs- Republic
    Criminal Appeal No. 274 of 2002

    Accused tried under the old Constitution not entitled to free legal representation

  • David Njoroge Macharia –vs- Republic
    Criminal Appeal No. 497 of 2007

    Importance of counsel; right to state-funded legal representation in capital offences under Article 50

  • Pett –vs- Greyhound Racing Association
    (1968) 2 All E.R 545

    Lord Denning on the necessity of legal assistance for a fair hearing

  • R –vs- Turnbull and others
    (1976) 3 All ER 549

    Warnings on the dangers of visual identification evidence

  • John Kamau Wamatu –vs- Republic
    Criminal Appeal No. 68 & 69 of 2008

    Identification parades test the correctness of a witness's identification of a suspect

  • Mwangi Mahita –vs- Republic
    (1976-80) 1 KLR 153

    Irregularity of a parade is a question of degree

  • Nathan Kamau Mugwe –vs- Republic
    Criminal Appeal No. 63 of 2008

    Failure to describe assailant before parade does not render an otherwise valid parade worthless

  • David Mwita Wanja & 2 others –vs- Republic
    Criminal Appeal No. 117 of 2005

    Requirements for scrupulously fair conduct of identification parades

  • R v Mwango s/o Manaa
    (1936) 3 EACA 29

    Value of identification evidence depreciates unless parade held with scrupulous fairness

  • Njihia v Republic
    [1986] KLR 422

    Consequences of badly conducted identification parades

On appeal from
High Court of Kenya at Meru
H.C.CR.A No. 119B of 2010
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Douglas Kinyua Njeru v Republic", Case Analysis (2015). Criminal Appeal No. 28 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/939/eng@2015-02-26

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