Fred Wanjala Natembea v Republic [2020] KECA 885 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a conviction for indecent acts with children but struck down a harsher sentence imposed without fair warning before the appeal hearing.
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 two courts below were entitled to find that the alternative counts of indecent act with a child were proved beyond reasonable doubt
- 2.Whether the appellant's conviction was based on inadmissible hearsay evidence and on the prosecution's failure to call certain witnesses
- 3.Whether the enhancement of the appellant's sentence from concurrent to consecutive terms, made on the court's own motion after the appeal had been heard, was proper
Key legal issues
#Scope of the Court of Appeal's intervention on a second appeal
The Court is confined to matters of law and will not disturb concurrent findings of fact absent a showing that there was no evidence to support them; the convictions on the alternative counts were therefore upheld.
The Court invoked its settled jurisdictional limitation on second appeals, supported by Karingo, Njoroge and Gichuru. It noted that both the trial magistrate and the first appellate Judge had made concurrent findings that the alternative counts of indecent act with a child were proved, and that no basis existed for disturbance. The Court observed that the appellant was fortunate to have escaped conviction on the main defilement counts, but as the acquittal was not challenged, it said no more about it.
Validity of enhancement of sentence after hearing without a timely warning
The High Court has power under section 354(3) of the Criminal Procedure Code to enhance sentence on appeal, but where there is no cross-appeal the appellant must be warned before or at the commencement of the hearing that the sentence may be enhanced; a late, post-hearing notice is merely formalistic and the enhancement must be reversed.
The learned Judge issued a suo motu notice to show cause after the appeal had been argued and after judgment had been written. The Court held this was an empty ritual that prejudiced the appellant, who was entitled to weigh the risk of pursuing the appeal. Following the line of authority in J.J.W., Gushashi Lelesit and Monei Kipshan, the Court found the enhancement improper, set aside the consecutive running of the sentences and restored the trial court's concurrent order.
Appellant's complaint of hearsay evidence and failure to call witnesses
The contention, based on section 111 of the Evidence Act and Bukenya v Uganda, that adverse inferences should have been drawn from the failure to call the girls who saw the appellant touching PW2, did not persuade the Court to disturb the convictions.
The argument was advanced by counsel on the hearsay prohibition in section 63 of the Evidence Act and the Bukenya line of authority on failure to call witnesses. The Court did not accept it as a ground for interference, holding instead that both courts below were entitled on the evidence of record to find the alternative charges proved beyond reasonable doubt. The complaint of violation of the right to a fair hearing likewise did not succeed.
Legal principles established
#- On a second appeal the Court of Appeal will not interfere with concurrent findings of fact of the two courts below unless there was no evidence upon which such findings could reasonably be based
- Where sentence may be enhanced on appeal and there is no cross-appeal, the appellant must be warned before or at the very beginning of the hearing of the appeal; a warning given after the hearing is an empty ritual and an enhancement founded on it is improper
Court orders
#- 1.The appeal against conviction fails and is dismissed
- 2.The order that the 10-year imprisonment sentences run consecutively is set aside
- 3.The trial court's order that the sentences run concurrently is restored
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- HCCRA No. 108 of 2014
- Jurisdiction invoked
- First appellate/second appellate jurisdiction over a criminal appeal, with judgment rendered under Rule 32(2) of the Court of Appeal Rules
Relief refused
#Quashing of the convictions on the alternative counts of indecent act with a child
As a second appeal, the Court would not interfere with concurrent findings of fact of the two courts below, and it found the alternative charges well proved
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.
As this is a second appeal, we would not be entitled to interfere with the concurrent findings of fact of the two courts below unless there was no evidence upon which such findings could reasonably be based
For such warning to be meaningful, it ought to be given before or at the very beginning of the hearing of the appeal, never at the tail end of or after the appeal has been heard
The upshot is that the appeal against conviction fails and is dismissed. As the enhancement was improper however, the order that the 10 year imprisonment sentences run consecutively is set aside and that of the trial court that they run concurrently is hereby restored. Orders accordingly.
Issues in the judgment
#The judgment states the appellant was charged with defilement 'contrary to section 8(1) of the Penal Code'; section 8(1) is a provision of the Sexual Offences Act, not the Penal Code, suggesting a drafting error in the judgment
The citation for Njoroge -vs- Republic is incomplete/garbled in the judgment, reading '[982]'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred Wanjala Natembea v Republic [2020] KECA 885 (KLR)", Case Analysis (2020). Criminal Appeal No. 20 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/885/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.