Isaac Anyula Khatete v Republic [2020] KECA 561 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can be criminally convicted for threatening a neighbour with a weapon even on private property.
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 appellant was properly identified or recognized as the person who committed the offence
- 2.Whether the appellant chased the complainant while armed with a panga, in a manner likely to cause a breach of the peace
- 3.Whether the Court, on a second appeal confined to matters of law, could disturb the concurrent findings of the two courts below
Key legal issues
#Scope of the Court's jurisdiction on a second appeal
The Court is confined to matters of law by section 361 of the Criminal Procedure Code and cannot interfere with findings of fact unless the lower courts considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
Relying on Karani vs. R and Karingo -vs- R, the Court restated that on a second appeal only matters of law are open. Interference with concurrent factual findings is permitted only where findings rest on no evidence, a perversion of the evidence, or where no reasonable tribunal properly directing itself would reach them, as set out in Adan Muraguri Mungara.
Ingredients of creating a disturbance likely to cause a breach of peace under section 95(1)(b) of the Penal Code
The prosecution must establish a brawl caused by the accused or a disturbance likely to cause a breach of peace; the disturbance must be likely to cause a breach of peace, not merely a disturbance, and the offence may be committed in a private place.
The Court adopted Muler –vs- Republic describing the offence as incitement to physical violence contemplating a breach of peace, and Felix Muthoni Nganga –vs- Republic holding the offence can occur in a private place since no public-place restriction appears in the statute. Chasing the complainant with a panga disturbed neighbours' peace.
Identification and sufficiency of evidence
The appellant was well known to the witnesses as a neighbour; recognition evidence was reliable, the incident occurred in broad daylight, and PW3 was an independent eyewitness, so there was no mistaken identity and no basis to doubt the testimony.
Applying Anjononi & others – v- Republic on recognition versus identification, the Court found the appellant was recognized, not merely identified. The direct eyewitness testimony of PW1, PW2 and PW3, including an independent witness, placed the appellant at the scene armed with a panga, supporting concurrent findings below.
Relevance of the disputed land title deeds
The existence or non-existence of title deeds for the land parcels was not an ingredient of the offence and was irrelevant to the appeal.
The appellant's grounds concerning Land Parcels Botshotso/Shikoti 2763, 4711, 4712 and 4713, including the alleged issuance of two title deeds to PW4, did not touch any element of the offence under section 95(1)(b) of the Penal Code and therefore could not ground interference with the conviction.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact of the two lower courts unless those findings are based on no evidence, a perversion of the evidence, or no reasonable tribunal would have reached them
- The offence of creating a disturbance likely to cause a breach of peace under section 95(1)(b) of the Penal Code can be committed in a private place; there is no requirement that the incident occur in a public place
- Recognition of an assailant, as opposed to identification of a stranger, is more satisfactory and reliable evidence because it depends on personal knowledge of the assailant
Court orders
#- 1.Dismissal of the appeal
- 2.Upholding and affirmation of the conviction and sentence meted upon the appellant by the courts below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H C Cr. Appeal No. 227 of 2012
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code, jurisdiction confined to matters of law
Relief refused
#Setting aside the High Court judgment, quashing the conviction and sentence, substitution with an acquittal and refund of the Ksh. 2,000 fine
The appeal lacked merit; the learned judge properly re-evaluated the evidence and correctly upheld the conviction and sentence, and the existence of title deeds was not an ingredient of the offence
Costs
No costs order 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 we find this appeal has no merit and is hereby dismissed.
we are satisfied that the learned judge properly re-evaluated the evidence on record and correctly upheld and affirmed the conviction and sentence meted upon the appellant
This Judgment is delivered pursuant to rule 32(2) of the Court of Appeal Rules since Odek, JA passed on before the delivery of the judgment.
In creating a disturbance likely to cause a breach of peace, there is no requirement that the incident must take place in a public place for the offence under Section 95(1) (b) of the Penal Code to be proved.
Issues in the judgment
#The coram lists three judges (Makhandia, Kiage and Otieno-Odek JJA), but the judgment states Odek JA passed on before delivery, and only two judges' signatures appear; the judgment was nevertheless delivered as a judgment of the Court under rule 32(2).
The quoted excerpt of the High Court judgment in the record is incomplete, introduced only by an ellipsis ('…..'), so the full text of the first appellate court's reasoning is not reproduced.
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.
- Wanje v Republic (Criminal Appeal 33 of 2020) [2021] KECA 477 (KLR)[2021] KECA 477 (KLR)9 Jul 2021
- Rophas Furaha Ngombo v Republic [2019] KECA 309 (KLR)[2019] KECA 309 (KLR)17 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Isaac Anyula Khatete v Republic [2020] KECA 561 (KLR)", Case Analysis (2020). Criminal Appeal No. 102 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/561/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.