Gilbert Mukundi Rubarua v Republic [2017] KECA 256 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that second appeals can only challenge legal errors, not re-argue facts both lower courts already found proven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the evidence on which the conviction rested was riddled with inconsistencies the High Court failed to reconcile, including whether PW3 (Benson) was at the scene
- 2.Whether the High Court failed to take into account the appellant's defence
- 3.Whether the prosecution's failure to call independent witnesses present at the scene vitiated the conviction
Key legal issues
#Scope of second appeals to the Court of Appeal
Section 361(1) confines second appeals to matters of law; concurrent findings of fact stand unless perverse or based on no evidence.
The court invoked section 361(1) of the Criminal Procedure Code and the Chemagong authority, holding it would be reluctant to interfere with factual findings, the only compelling reason being that they were perverse and therefore bad in law.
Effect of failure to challenge a witness's presence in cross-examination
The allegation that PW3 was not at the scene failed because it was never put to him in cross-examination, and the appellant's own evidence placed him there.
Benson swore he was walking with his wife and daughter when attacked and was believed by both courts below. The appellant himself acknowledged being together with him at the police post and testified that Benson brandished a panga at him, placing him at the scene.
Failure to call independent eyewitnesses
No adverse inference arises where the evidence led is cogent; the Bukenya principle applies only where crucial evidence is omitted leaving the case scanty. Martin Ndegwa Kabocho was distinguished on its facts.
The independent witnesses never claimed to have witnessed the offence and none could be traced for statements. The five witnesses called gave cogent evidence, so there was no necessity for a multiplicity of witnesses; Kabocho concerned recent possession where a crucial witness was omitted.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to points of law and will not disturb concurrent findings of fact unless those findings are based on no evidence or are perverse.
- An adverse inference for failure to call a witness arises only where the evidence on record is scanty or barely adequate and the uncalled witness was crucial.
- There is no prescribed number of witnesses required to prove a fact; the sufficiency, not multiplicity, of credible evidence governs.
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H. C. Cr. A. No. 9 of 2012
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to points of law)
Relief refused
#Quashing of conviction on grounds of inconsistent evidence
Nothing was put to PW3 in cross-examination to suggest he was absent from the scene, and the two courts below believed his evidence
Conviction overturned for non-Calling of independent witnesses
The five witnesses who testified gave cogent evidence; an adverse inference arises only where crucial evidence is left out leaving scanty evidence
Costs
No order as to costs is recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that this appeal is lacking in merit and we order that it be and is hereby dismissed.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of facts arrived at in the two courts below unless based on no evidence.
It would have been different if only scanty or barely adequate evidence was put on record leaving out crucial evidence, for then, an adverse inference would have been drawn against the prosecution.
there is no law that requires a certain number of witnesses to prove a fact.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbert Mukundi Rubarua v Republic [2017] KECA 256 (KLR)", Case Analysis (2017). Criminal Appeal No. 47 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/256/eng@2017-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.