Republic v Ongeri & another (Criminal Appeal 390 of 2018) [2023] KECA 337 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the State's attempt to overturn an acquittal, confirming prosecution appeals against acquittals must be exceptional.
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 learned judge erred in law and fact in failing to find that the trial court did not properly evaluate the evidence produced by the prosecution and subsequently acquitting the respondents
- 2.Whether the learned judge erred in law and fact in failing to order a retrial
Key legal issues
#Scope of the Court's jurisdiction on a second appeal
The Court is confined to matters of law by section 361(1)(a) of the Criminal Procedure Code and will not disturb concurrent findings of fact that were based on the evidence and on correct principles.
By dint of section 361(1)(a) of the Criminal Procedure Code, a second appeal concerns only matters of law. The trial magistrate and the High Court judge made concurrent findings that the prosecution case was riddled with material contradictions - on acreage, price per acre, the identity of the seller and the payee. Those findings were supported by the record, were not based on misapprehension of the evidence, and no wrong principles were demonstrated, so the Court could not interfere.
Exercise of the State's right of appeal against an acquittal
The right of appeal against acquittal conferred by the amended section 348A must be exercised in exceptional circumstances; this was not such a case.
The Court noted that the Security Laws (Amendment) Act No. 19 of 2014 widened the State's right of appeal against acquittals from matters of law only to matters of fact and law. Associating itself with Republic v Danson Mgunya and Maina & others v Republic, the Court reiterated that appeals against acquittal are inherently uneasy and the right must be exercised sparingly, only where the circumstances loudly cry out for appellate justice.
When a retrial may be ordered
A retrial is ordered only where the original trial was illegal or defective, not to enable the prosecution to fill gaps in its evidence; no basis for a retrial was laid here.
Relying on Ahmed Sumar v R and Samuel Wahini Ngugi v R, the Court restated that a retrial follows only where the original trial was illegal or defective and where the interests of justice require it without causing injustice to the accused. Since the acquittal rested on insufficiency of evidence, and the appellant did not even submit on retrial, the ground failed in its entirety.
Legal principles established
#- On a second appeal under section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless they are based on no evidence, on a misapprehension of the evidence, or on wrong principles.
- A retrial will only be ordered where the original trial was illegal or defective; it will not be ordered where a conviction is set aside because of insufficiency of evidence or to enable the prosecution to fill gaps in its evidence.
- The State's right of appeal against an acquittal following the Security Laws (Amendment) Act No. 19 of 2014 must be exercised in exceptional circumstances that loudly cry out for appellate justice.
Court orders
#- 1.The appellant's appeal is dismissed in its entirety
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, confining the Court to matters of law
Relief refused
#Interference with the concurrent findings of the two courts below that the prosecution evidence was riddled with inconsistencies
The findings were based on the evidence, not on misapprehension of the evidence, and the appellant did not demonstrate that the courts below acted on wrong principles
An order of retrial
The appellant did not address the Court on this issue in its written submissions and laid no basis upon which a retrial could be ordered
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 upshot of the foregoing is that the appellant’s appeal is without merit and the same is hereby dismissed in its entirety.
It is so ordered.
This being a second appeal we are reminded of our primary role as a second appellate court, namely to steer clear of all issues of facts and only concern ourselves with issues of law
In our view, this is a right that must be exercised in exceptional circumstances, the kind that loudly cry out for appellate justice.
Issues in the judgment
#The judgment inconsistently dates the sale agreement, stating it was 'dated 9th of September 2020' in the submissions paragraph although the alleged offence occurred in 2009, an apparent typographical error.
The judgment is dated and delivered at Nakuru on 24 March 2023, yet paragraph 11 records the plenary hearing as having taken place on '5th December 2022', which is internally consistent, but the Memorandum of Appeal is described as filed in 2018 while the written submissions are dated 9 November 2021 - a long interval that is not explained.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ongeri & another (Criminal Appeal 390 of 2018) [2023] KECA 337 (KLR)", Case Analysis (2023). Criminal Appeal (as per Memorandum of Appeal pursuant to Notice of Appeal dated 14th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/337/eng@2023-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.