John Kariuki Gikonyo v Republic [2019] KECA 1016 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man sentenced to death because the prosecution's key witness never testified under oath.
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 first appellate Judge failed to consider that PW2's evidence was not administered on oath and the effect of such evidence in a criminal trial
- 2.The effect of failure by the prosecution to call crucial witnesses
- 3.Whether the first appellate court failed in its duty to re-analyze the evidence and misdirected itself and, if so, the consequences thereof
Key legal issues
#Whether unsworn testimony of the star prosecution witness vitiates a conviction
Yes. The record was silent as to the swearing or affirmation of PW2, the star witness. The defect renders the testimony a nullity ab initio, impacts the legality of the conviction, and the first appellate judge erred in failing to address the issue despite it being raised before her.
Section 151 of the Criminal Procedure Code requires every witness in a criminal cause to be examined upon oath. The only discernible Kenyan exception concerns children of tender years who do not understand the nature of an oath under section 19 of the Oaths and Statutory Declarations Act. Since the conviction rested on PW2's unsworn testimony, and the first appellate court failed to deal with the complaint, the conviction could not stand and re-evaluation of other evidence would be futile.
Whether a retrial should be ordered in place of an outright acquittal
No. Although the failure to swear PW2 was the trial court's mistake for which the prosecution was not to blame, a retrial six years after the offence risked prejudice to the appellant, and the benefit of the unanswered question of prejudice went to the appellant.
Applying Ahmedi Ali Dharamsi Sumar and Fatehali Manji, a retrial depends on the facts of each case and is made only where the interests of justice require it without injustice to the accused. The trial began in 2012; counsel for the prosecution did not address whether witnesses would be available; witnesses change addresses, the availability of exhibits was unknown, and the appellant had served years in prison.
Whether new issues raised for the first time on second appeal can be entertained
No. Grounds such as the defective signing of the charge sheet, failure to explain the substance of the charge, the right to recall witnesses, and the right to counsel were raised for the first time on second appeal without explanation, and the court declined to address matters on which the two courts below had expressed no opinion.
The court adopted Alfayo Gombe Okello, holding that issues not raised at the earliest opportunity, although they could and should have been, cannot be taken up on second appeal. The first appellate judge could not be faulted for failing to address issues never placed before her. Similarly, the identification issue was conceded as never having been raised below and therefore did not fall for consideration.
Legal principles established
#- On a second appeal under section 361 of the Criminal Procedure Code the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless they are based on no evidence, or the courts below acted on wrong principles, or were plainly wrong
- Except for the statutory exception relating to children of tender years who do not understand the nature of an oath, testimony in a criminal case must be given on oath or affirmation; unsworn testimony is a nullity and its consequences impact the legality of the conviction
- Where a witness gave testimony without oath or affirmation and the trial has already been concluded, the recourse is either an acquittal or a retrial depending on the circumstances
- A retrial should only be ordered where the interests of justice require it and where it is not likely to cause an injustice to the accused; it will not be ordered merely to enable the prosecution to fill gaps in its evidence
- A party who fails to raise an issue at the earliest opportunity and offers no explanation for the omission cannot have that issue determined for the first time on second appeal, particularly where there is no opinion by the two courts below on it
Court orders
#- 1.Appeal allowed
- 2.Conviction quashed
- 3.Sentence of death set aside
- 4.Appellant set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.A No 54 of 2015
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code, limited to matters of law
Relief refused
#Order of retrial
The court could not be satisfied that witnesses and exhibits would be available six years after the offence, and any doubt on prejudice goes to the appellant
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.
The appeal herein is hereby allowed, we quash the conviction and set aside the sentence of death. Unless the appellant is otherwise lawfully held, he is set at liberty forthwith.
Generally therefore, the testimony given in criminal cases must always be either under oath or affirmation.
However, where the trial has already been concluded as is the case herein, the recourse left is either an acquittal or a retrial, depending on the circumstances of the case.
Whether an order for retrial should be made depends on the particular facts and circumstances of each case but should only be made where the interests of justice require it and where it is not likely to cause an injustice to an accused person.
We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision
We are disinclined to address matters where there is no opinion by the two courts below on new issues introduced for the first time on a second appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masha v Republic (Criminal Appeal E066 of 2023) [2025] KECA 1826 (KLR)[2025] KECA 1826 (KLR)7 Nov 2025applied
- Mwingirwa & another v Republic (Criminal Appeal 11 & 12 of 2017 (Consolidated)) [2025] KECA 1253 (KLR)[2025] KECA 1253 (KLR)4 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "John Kariuki Gikonyo v Republic [2019] KECA 1016 (KLR)", Case Analysis (2019). Criminal Appeal No. 14 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1016/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.