Makhakha v Republic (Criminal Appeal 48 of 2017) [2019] KECA 195 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a 'case to answer' ruling—criminal appeals only lie after conviction.
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 prosecution established a prima facie case warranting the appellant to be put on his defence
- 2.Whether the appellant's rights under section 211 of the Criminal Procedure Code were violated
- 3.Whether there is a right of appeal at the close of the prosecution's case
Key legal issues
#Scope of a second appeal under section 361 CPC
A second appeal is limited to issues of law; the court will not interfere with concurrent findings of fact.
By dint of section 361 of the Criminal Procedure Code, the Court's mandate on second appeal extends only to issues of law. The Court adopted the three elements of 'matters of law' from Munya: the technical, practical and evidentiary elements, and reiterated that concurrent findings of fact stand unless no reasonable tribunal could have reached them.
Standard for establishing a prima facie case
Beyond reasonable doubt is not required at the close of the prosecution case; the Bhatt test applies.
The basis for putting an accused on his defence is the prosecution establishing a prima facie case, tested by whether a reasonable tribunal properly directing its mind to law and evidence could convict if no explanation is offered. Full critical examination of the evidence occurs only after the defence is tendered.
Right of appeal at the close of the prosecution's case
No right of appeal lies against a case-to-answer ruling before conviction; the appeal to the High Court was incompetent.
Under section 347(1)(a) of the CPC a right of appeal arises only upon conviction. A case-to-answer determination does not mean inevitable conviction and, following Cholmondeley, an adverse ruling does not by itself ground an appeal unless it violates a fundamental right. Public policy requires criminal trials not be held up by such appeals.
Compliance with section 211 CPC
No violation; it was premature to comply with section 211 since the defence hearing was held in abeyance pending the appeal.
Section 211 requires the rights of an accused to be explained at the close of the prosecution case. Here the trial court did not proceed with the defence but awaited the outcome of the appeal, so any failure to explain the section 211 rights caused no failure of justice and the complaint was premature.
Legal principles established
#- A second appeal is confined to matters of law; concurrent findings of fact by the two courts below will not be disturbed unless no reasonable tribunal could have reached them on the recorded evidence.
- There is no right of appeal from a subordinate court to the High Court by an accused person who has not been convicted; a ruling that there is a case to answer is interlocutory and not appealable.
- The standard of proof beyond reasonable doubt is not required at the close of the prosecution's case; a prima facie case is one on which a reasonable tribunal could convict if no explanation is offered by the defence.
- Criminal trials should not be held up by interlocutory appeals against case-to-answer rulings; appellate courts may stay such appeals pending conclusion of the trial.
Court orders
#- 1.Appeal dismissed
- 2.Kimilili Criminal Case No 581 of 2012 to proceed at the trial court before the same magistrate or any other magistrate under section 200 of the CPC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code - second appeal limited to matters of law
Relief refused
#Second appeal against ruling putting appellant on his defence
Second appeal lies only on matters of law and the appellant had no right of appeal against the interlocutory ruling
Costs
No order as to costs was 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.
This being a second appeal, by dint of section 361 of the Criminal Procedure Code, our mandate is to consider only issues of law.
It is clear that the standard of establishing a case beyond reasonable doubt after the close of the prosecution's case is not required in determining whether or not the accused has a case to answer.
Under section 347(1)(a) of the Criminal Procedure Code, a right of appeal from a subordinate court to the High Court only arises where an accused person has been convicted.
we find that this appeal must fail, and we hereby dismiss it. Accordingly, we direct that Kimilili Criminal Case No 581 of 2012 against the appellant shall proceed at the trial court before the same magistrate or any other magistrate under section 200 of the CPC.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makhakha v Republic (Criminal Appeal 48 of 2017) [2019] KECA 195 (KLR)", Case Analysis (2019). Criminal Appeal (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/195/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.