Nicholas Buri Onkeo v Republic [2019] KECA 537 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a cashier's theft appeal, confirming that second appeals only review legal errors, and constitutional complaints must be raised early.
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 trial court and the first appellate court shifted the burden of proof to the appellant
- 2.Whether the charge sheet was amended without the appellant being given a chance to plead anew, rendering the trial defective
- 3.Whether the appellant's right to a fair trial was violated by his not being arraigned in court within twenty-four hours
- 4.Whether the conviction was supported by the evidence notwithstanding the concurrent findings of fact of the two courts below
Key legal issues
#Whether the burden of proof was shifted to the appellant
The court held that the appellant was properly convicted on the evidence; the prosecution discharged its burden and the concurrent findings of the two lower courts on the theft stood.
Two bank witnesses gave concrete evidence supporting the trial court's findings. The trial court disbelieved the appellant's explanation that he left money on the floor, and the High Court found no robbery occurred at the bank. In the absence of any reasonable explanation of what happened to the money in his possession, the Court was satisfied the conviction was proper and declined to interfere with the concurrent findings of fact.
Whether the failure to plead to an allegedly amended charge rendered the trial defective
The court held that the record did not show the charge was amended, and in any event no failure of justice was demonstrated.
Section 214(1) of the Criminal Procedure Code empowers a trial court to amend a charge. The charge the appellant pleaded to on 4th October 2004 already stated the sum of Kshs. 702,966/20, which matched the investigating officer's evidence. Since the record showed no amendment and the appellant failed to demonstrate prejudice or a failure of justice, the ground failed.
Whether the delay of nine days before arraignment violated the appellant's fair trial rights
The ground was rejected as an afterthought raised for the first time in a second appeal, and as waived; in any event the delay did not exonerate the appellant.
The claim fell under Section 72(3)(b) of the repealed Constitution. The appellant, who was represented by an advocate, never raised the issue before the two courts below. Following its previous decisions, the Court held that failure to raise the complaint in the High Court amounts to a waiver, and that the delay did not exonerate the appellant from the crime alleged.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law and does not disturb concurrent findings of fact by the two courts below
- A complaint of violation of the right to be arraigned in court within twenty-four hours (Section 72(3)(b) of the repealed Constitution) cannot be raised for the first time in a second appeal; failure to raise it below amounts to a waiver of the right to complain
- An amendment of a charge under Section 214(1) of the Criminal Procedure Code does not vitiate a trial unless the appellant shows the amendment occasioned a failure of justice
Court orders
#- 1.The appeal has no merit and is hereby dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisii
- H.C.CR.A. No. 21 of 2008
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to matters of law
Relief refused
#Setting aside the conviction for shifting of the burden of proof
There was ample direct and circumstantial evidence supporting the concurrent findings of fact of the two courts below that the appellant stole the money
Quashing the trial for an allegedly amended charge not put to the appellant
The record of the trial court does not show that the charge was amended, and no failure of justice was shown
Relief for breach of the right to be arraigned within twenty-four hours
The complaint was raised for the first time in a second appeal and treated as an afterthought and a waiver
Costs
No costs order was made 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.
For the foregoing reasons, the appeal has no merit and is hereby dismissed.
There was ample, direct and circumstantial evidence to support the concurrent findings of fact by the two courts below that the appellant stole the money in his possession.
the appellant must be treated to have waived his right to complain about the alleged violations of his constitutional rights before he was brought to court.
Further, if indeed the charge was amended as alleged, the appellant has not shown that such amendment occasioned a failure of justice.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Buri Onkeo v Republic [2019] KECA 537 (KLR)", Case Analysis (2019). Criminal Appeal No. 173 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/537/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.