Baishe & another v Republic (Criminal Appeal 2 & 123 of 2022 (Consolidated)) [2025] KECA 37 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that free State-funded lawyers aren't automatic in criminal trials, and upheld the appellants' 20-year sentences.
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 appellants' right to a fair trial was violated on the ground that they were not provided with an advocate at State expense
- 2.Whether the appellants were properly convicted
Key legal issues
#Whether failure to provide State-funded counsel breached Article 50(2)(g) and (h)
No breach: the appellants were informed of their right to counsel, chose to represent themselves, and did not demonstrate substantial injustice.
The Court held that the right to legal representation at State expense is not automatic or absolute. Under Article 50(2)(h) an accused must establish that substantial injustice would otherwise result. The record showed the trial magistrate informed the appellants they could instruct counsel; they declined, cross-examined witnesses intensively, made submissions and called defence witnesses. The Court found no substantial injustice demonstrated, so the fair-trial ground failed.
Whether the appellants' convictions were proper notwithstanding their defence of self-defence
Yes. The concurrent findings that the appellants attacked the complainant without provocation and not in self-defence were sound and not disturbed on second appeal.
The Court reaffirmed that on second appeal it deals with matters of law only and will not disturb concurrent factual findings unless based on no evidence, misapprehension, or wrong principles. Applying self-defence principles (necessity and proportionality of force), the Court found the complainant was not armed, was pinned down while slashed, and sustained grievous injuries inconsistent with self-defence. The 2nd appellant's flight and four-hour absence evidenced a guilty mind, corroborating the prosecution case.
Legal principles established
#- On a second appeal, the Court is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles.
- The right to legal representation at State expense under Article 50(2)(h) is not automatic; an accused must establish that substantial injustice would otherwise result.
- An accused who was informed of the right to counsel, elected to represent himself, cross-examined witnesses effectively and called defence witnesses cannot claim prejudice from lack of representation.
- Self-defence is available only where the force used was necessary and reasonable; flight from the scene may corroborate a guilty mind.
Court orders
#- 1.The two consolidated appeals are dismissed in their entirety
- 2.The judgment of the High Court of Kenya at Garsen (Githinji, J) dated 7th June 2022 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Criminal Appeal No. 123 of 2022 (consolidated with Criminal Appeal No. 2 of 2022)
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the law relating to criminal appeals (matters of law only); no specific provision quoted in the judgment.
- Consolidated with
- Criminal Appeal No. 2 of 2022
Relief refused
#Quashing of the convictions and setting aside of the 20-year sentences
Appellants' Article 50(2)(g) and (h) rights were not infringed and their defences were properly rejected by the two courts below
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 two consolidated appeals lack merit and are hereby dismissed in their entirety. Consequently, the judgment of the High Court of Kenya at Garsen (Githinji, J) dated 7th June 2022 be and is hereby upheld. Orders accordingly.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
the right to legal representation is not an automatic or absolute right. An accused person has to establish that failure to have an advocate represent him or her would occasion him or her substantial prejudice.
Self defence is an absolute defence even on a charge of murder unless in the circumstances of the case the accused applied excessive force.
The appellant's attempt to flee the scene is indicative of his guilty mind and may be relied upon as evidence that corroborates the prosecution case.
Issues in the judgment
#The date of the High Court judgment is inconsistently rendered within the judgment: 'a judgment dated 7th June April 2022' (typo) versus 'dated 7th June 2022' in the final orders.
The case title and parties' names are not stated in the provided extract; only 'the 1st appellant' and 'the 2nd appellant' are used throughout.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baishe & another v Republic (Criminal Appeal 2 & 123 of 2022 (Consolidated)) [2025] KECA 37 (KLR)", Case Analysis (2025). Criminal Appeal No. 123 of 2022 (lead file), consolidated with Criminal Appeal No. 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/37/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.