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Court of AppealDismissedCriminal Appeal No. 2 of 2016· [2017] KECA 222 (KLR)

Michael Mukuti Muthungu v Republic [2017] KECA 222 (KLR)

Court of Appeal
19 October 2017
2,491 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 upheld a land-fraud conviction, confirming that second appeals only question points of law, not how the trial court weighed facts.

What this practically means

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Executive summary

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The Court of Appeal (Kihara Kariuki, PCA, Karanja and J. Mohammed, JJ.A) dismissed the appellant's second appeal against conviction and sentence for forgery and obtaining money by false pretences. The appellant and his co-accused had posed as owners of a parcel of land, presented a forged title deed and forged Land Control Board consent, and duped the complainants out of Kshs. 2.6 million. He was convicted by the Chief Magistrate's Court in Kiambu and sentenced to 3 years' imprisonment on each count, running concurrently; the High Court (Kimaru J.) dismissed his first appeal on 1st October 2015. On second appeal under Section 361(1) of the Criminal Procedure Code, the Court reiterated that its remit is confined to issues of law and that it must defer to concurrent findings of fact unless no reasonable tribunal could have reached them. The Court held that the High Court had duly re-evaluated the evidence; that the failure to call the advocate, the introducer, the registered owner and the registered owner of the Mpesa line was not fatal since their evidence would have been cumulative or irrelevant; and that identification was sound as the complainants dealt with the appellant face to face in broad daylight over more than two months. All four grounds of appeal failed and the conviction and sentence of the trial court were upheld.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

A second appeal is confined to matters of law; the court will not interfere with concurrent findings of fact unless based on no evidence.

Reasoning

By dint of Section 361(1) of the Criminal Procedure Code, the Court's remit on second appeal is limited to issues of law. Concurrent findings of fact by the trial court and High Court must be accepted unless it is apparent that no reasonable tribunal could have reached that conclusion, or the findings are not based on acceptable and clear evidence adduced at trial. The court applied Karingo v R and M'Riungu v Republic to this standard.

p. 3
02

Whether the High Court duly re-evaluated the evidence on first appeal

Holding

The learned Judge had meticulously gone through the entire evidence, reappraised it and reached an independent decision, satisfying the duty of a first appellate court.

Reasoning

The court was satisfied from the judgment of the High Court that the Judge reconsidered the entire evidence adduced before the trial court before arriving at his decision. The judgment expressly confirmed reconsideration of the whole record, and the Court of Appeal's own assessment concurred that the requirement to reanalyse and re-evaluate had been met. Ground (i) therefore failed.

p. 4
03

Failure to call material witnesses and adverse inference

Holding

Non-calling of the advocate, the introducer (Mwenda/Muema), the registered owner, and the registered phone owner was not fatal; their evidence would have been cumulative or irrelevant.

Reasoning

The advocate would only have repeated what PW1 and her husband said; Mwenda only passed on phone numbers; the registered owner was not party to the transaction and the forged Title Deed was confirmed by the Land Registrar; and the registered phone owner was unnecessary since the appellant was not charged with identity theft. The credibility findings of the buyers having no grudge or reason to fabricate were concurrent findings of fact which the Court would not disturb.

p. 4
04

Identification of the appellant

Holding

The appellant was positively identified; the complainants dealt with him face to face in broad daylight over a considerable period, and concurrent findings on identification were sound.

Reasoning

Daisy and her husband dealt with the appellant at close quarters for more than two months, met face to face in broad daylight, and no evidence suggested circumstances rendering identification difficult. The complainant also identified the appellant at the police station and his co-accused at an identification parade without difficulty. These were concurrent findings of fact attracting no interference on second appeal.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal deals only with issues of law and will not interfere with concurrent findings of fact by the two courts below unless no reasonable tribunal could have reached that conclusion.
  • Failure to call a witness is not fatal to the prosecution case where the witness's evidence would not add value or is merely cumulative of other evidence.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Conviction and sentence of the trial court upheld

Authorities

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Legislation

  • Penal CodeSection 345
  • Penal CodeSection 313
  • Criminal Procedure CodeSection 361(1)

Cases cited (3)

  • Karingo v R
    (1982) KLR 213
  • Reuben Karari s/o Karanja -vs- R
    (1956) 17 EACA 146
  • M'Riungu v Republic
    [1983] KLR 455
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A No. 11 of 2015
Jurisdiction invoked
Section 361(1) 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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Cite this brief

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Cite this brief

Caselaw, "Michael Mukuti Muthungu v Republic [2017] KECA 222 (KLR)", Case Analysis (2017). Criminal Appeal No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/222/eng@2017-10-19

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