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Court of AppealDismissedCriminal Appeal No 7 of 2017· [2023] KECA 1050 (KLR)

Kiburi & another v Republic (Criminal Appeal 7 of 2017) [2023] KECA 1050 (KLR)

Court of Appeal of Kenya
24 August 2023
2,333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that if witnesses already know the attackers, no identification parade is needed and second appeals cannot retry the facts.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nyeri against conviction and sentence by the Senior Principal Magistrate's Court at Maua for robbery with violence contrary to section 296(2) of the Penal Code, affirmed by the High Court at Meru (KW Kiarie, J) on December 20, 2016. The appellants, two of six armed men, were recognised by PW1 and PW2 as among the attackers who robbed the complainant of solar equipment and cash in daylight; co-accused persons were acquitted. The appellants raised alibi and grudge defences, which both courts below rejected. Before the Court of Appeal, counsel argued that an identification parade was necessary, that recognition evidence was flawed, that the burden of proof was shifted, and that the death sentence was excessive. The court, per a single judgment of W. Karanja, L. Kimaru and A.O. Muchelule, JJ A, reiterated that under section 361 of the Criminal Procedure Code a second appeal is confined to matters of law and concurrent findings of fact will not be disturbed absent absence of evidence. Because the appellants were known to the witnesses and the attack occurred in daylight, the case was one of recognition and no identification parade was required. The defences were found to have been considered and rejected; complaints about ingredients, sentence and burden of proof were unsubstantiated or raised only in submissions. The appeal was dismissed in its entirety, upholding the convictions and death sentences. No costs order was recorded.

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

The court's mandate is confined to matters of law and will not disturb concurrent findings of fact unless based on no evidence

Reasoning

The court invoked its settled jurisdictional limit under section 361, citing Karingo v R. Findings by the trial court and the High Court that the appellants were recognised as assailants were concurrent findings of fact, so the second appeal court could not re-evaluate the evidence afresh but only examine whether any legal principle was misapplied.

p. 1
02

Whether an identification parade was necessary

Holding

Where the assailants were known to the witnesses, the case is one of recognition and an identification parade is unnecessary

Reasoning

The incident occurred in daylight at about 5.30pm and the appellants were from the same sublocation and known to PW1 and PW2, as their frame-up claims confirmed. Relying on James Murigu Karumba v Republic, the court held recognition, not stranger identification, was in issue, so the absence of an identification parade did not vitiate the conviction.

p. 4
03

Whether the appellants' defences and the burden of proof were adequately handled

Holding

Both courts considered and rejected the defences of alibi and grudge; claims of shifted burden and contradictory/hearsay evidence were unsubstantiated

Reasoning

The trial court expressly found the defence a made-up story, and the High Court reviewed that finding. The appellate court found the complaints about shifting the burden of proof and about contradictory or hearsay evidence to be unsubstantiated and without basis, and declined to entertain arguments raised only in written submissions rather than in the grounds of appeal.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence
  • Where witnesses knew the assailants before the incident, the case is one of recognition and no identification parade is required

Court orders

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  1. 1.The appeal is dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 169

Cases cited (13)

  • Karingo -v- R
    [1982] eKLR 213
  • Reuben Karari c/o Karanja -vs- R
    (1956) 17 EACA 146
  • Hassan Abdallah Mohammed -v- Republic
    [2017] eKLR
  • Wamunga -v- Republic
    [1989] KLR 424
  • Maitanyi -v- Republic
    [1986] KLR 198
  • James Karani M’Ikombo -v- Republic
    [2004] eKLR
  • Martin Oduor Lango & 2 others -v- Republic
    [2014] eKLR
  • Victor Mwendwa Mulinge -v- Republic
    [2014] eKLR
  • James Kariuki Wagana -v- Republic
    [2018] eKLR
  • Waylan Abdullah -v- The State, Criminal Case No 134 of 2021
    [2022] ZASCA
  • Johana Ndungu -v- Republic
    [1996] eKLR
  • Bernard Kimani Gacheru -v- Republic
    [2002] eKLR
  • James Murigu Karumba -v- Republic
    [2016] eKLR
On appeal from
High Court of Kenya at Meru
Not stated in the judgment
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiburi & another v Republic (Criminal Appeal 7 of 2017) [2023] KECA 1050 (KLR)", Case Analysis (2023). Criminal Appeal No 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1050/eng@2023-08-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.