Ndegwa v Republic (Criminal Appeal 76 of 2016) [2024] KECA 294 (KLR)

Section 361 of the Criminal Procedure Code confines a second appeal to matters of law, excluding matters of fact and sentence except where the High Court enhanced the sentence or the subordinate court lacked power to pass it. The Court adopted the Chemagong test: whether the trial court could find as it did on the evidence. Concurrent findings of the two courts below on facts and the veracity of witnesses were therefore beyond the Court's reach.

Sections 200(3) and (4) require that a succeeding magistrate inform the accused of the right to have witnesses resummoned and reheard, and permit the High Court to set aside a conviction where the accused was materially prejudiced. The Court held that the prejudice inquiry looks at the overall picture and circumstances. Since the first witness had not even completed her evidence in chief when the magistrate changed, no prejudice arose; counsel could have covered any aspect in cross-examination.

The evidence comprised the complainant's clear testimony, the serial numbers of the marked trap money, the recorded conversation, recovery of the money from the appellant and direct eyewitness evidence. The two courts below accepted these facts and the Court found no reason to doubt the veracity of the witnesses. The appellant's sworn denial that the voice was his and that the money was planted did not dislodge the overwhelming prosecution evidence.

The Court reviewed the record and found the assertion inaccurate: the trial court considered the appellant's sworn defence alongside the prosecution evidence and concluded it was insufficient. The High Court had also properly addressed the grounds of appeal, so its dismissal of the first appeal was sound. This ground was thus a factual complaint beyond, and in any event contrary to, the record.