Samuel Chege Kihika v Republic [2020] KECA 483 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a second criminal appeal can only challenge legal errors, not re-argue the facts already accepted by two lower courts.
What this practically means
#Executive summary
#Key legal issues
#Scope of the second appeal under Section 361(1)(a) Criminal Procedure Code
The second appellate court considers only issues of law and must not disturb concurrent findings of fact by the trial court and first appellate court unless on the evidence no reasonable tribunal could have reached that conclusion
The Court invoked its own prior decision in M'Irungi v Republic, restating that where the right of appeal is confined to questions of law, the appellate court must accept findings of fact of the lower courts and resist treating factual findings as holdings of law or mixed findings. Its mandate was to check whether the two courts below carried out their mandates as required by law.
Duty of the first appellate court to re-evaluate evidence
The learned Judge of the High Court discharged her duty by going through each part of the prosecution and defence case, finding the minor's testimony consistent and unshaken, and dismissing the appeal
The Court perused the whole record and found that Achode, J went through each part of the prosecution and defence case, considered the consistency of the evidence of the minor, his mother, the police officer and the doctor, and specifically evaluated the alibi defence by making findings on the appellant's duty roster for each date charged. The Court agreed with those findings and found no failure of re-evaluation.
Alibi defence
The alibi defence failed because the appellant was shown to have had the opportunity to commit the offences on the relevant dates, including being off duty during the day on 26th June 2009
The trial Magistrate and the first appellate Judge both considered the alibi in light of the duty roster and the evidence of the defence witnesses, finding the appellant off duty during the day on 26th June 2009 with opportunity to commit the offence, and made similar findings for the other dates. The second appellate Court, being confined to questions of law, found no error in the rejection of the alibi.
Legal principles established
#- On a second appeal confined to questions of law, the Court of Appeal must accept the findings of fact of the lower courts and will not interfere unless no reasonable tribunal could have reached that conclusion on the evidence
- Whether or not the first appellate court re-evaluated the evidence is an issue of law cognizable on a second appeal
Court orders
#- 1.The appeal is dismissed
- On appeal from
- High Court of Kenya at Nairobi
- HC. CR. A. No. 302 of 2010
- Jurisdiction invoked
- Section 361(1)(a) Criminal Procedure Code - second appeal confined to matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Chege Kihika v Republic [2020] KECA 483 (KLR)", Case Analysis (2020). Criminal Appeal No. 121 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/483/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.