Makau & another v Republic (Criminal Appeal E037 & E038 of 2023 (Consolidated)) [2025] KECA 661 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the robbers' appeals, confirming that second appeals can only challenge legal errors, not facts or harsh sentences.
What this practically means
#Executive summary
#Key legal issues
#Propriety of the identification parade
The ground fails. The 1st appellant declined to cross-examine the parade officer at trial, leaving the identification evidence unshaken; the challenge, being one of mixed law and fact, comes too late on second appeal.
The Court noted that the 1st appellant voluntarily chose not to cross-examine PW11, the parade officer, at trial, which left the evidence of his identification at the parade unshaken and believable. The complaint that PW1 was shown to him before the parade violated the Police Standing Orders was not substantiated and, being a matter of mixed law and fact, was raised too late on second appeal. The Court found nothing to fault in the learned Judge's upholding of the identification evidence.
Duty of the first appellate court to re-analyse evidence
The ground fails. The learned Judge expressly re-analysed and re-evaluated the evidence, and counsel did not demonstrate that the concurrent findings rested on no evidence, misapprehension, or wrong principles.
Counsel made only a general statement without identifying which findings of fact were founded on no evidence or based on misapprehension of the evidence, and did not show the courts below acted on wrong principles. On reviewing the impugned judgment, the Court found that paragraphs 9 to 18 demonstrated the attention the learned Judge paid to re-analysis and re-evaluation of the evidence. The second appeal is confined to questions of law, so concurrent findings of fact stand.
Alleged unconstitutionality of the robbery charge (Joseph Kaberia Kahinga)
The ground fails. The High Court's decision in Joseph Kaberia Kahinga amounts only to a recommendation for law reform; it is not binding on the Court of Appeal, which is bound only by the Supreme Court, and the point was raised for the first time on second appeal.
The Court characterised the High Court's suspension of the robbery provisions pending law reform as a recommendation coupled with directions, not a binding declaration capable of obligating the Court of Appeal to halt appeals. The Court exercises its appellate jurisdiction under the Constitution and statute law as it stands, and is bound only by Supreme Court decisions under stare decisis. Further, the constitutional challenge was raised for the first time on second appeal, which is permissible only in rare cases where full justice can be done without investigating untested facts.
Life imprisonment sentence
The ground fails. Severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code and is therefore not open for consideration on a second appeal.
The Court relied on its own settled jurisprudence, including MGK v Republic, that under section 361(1) of the Criminal Procedure Code severity of sentence is a matter of fact and not a legal issue for a second appeal. Whatever the merits of the contention that life imprisonment is unconstitutional by reason of its indeterminate nature (Julius Kitsao Manyeso), the Court on second appeal is not mandated to pronounce itself on the severity of the life sentence imposed on the appellants.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to questions 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
- Severity of sentence is a matter of fact and is not open for consideration by the Court of Appeal on a second appeal under section 361(1) of the Criminal Procedure Code
- The High Court's decision in Joseph Kaberia Kahinga v Attorney General on the robbery provisions of the Penal Code amounts to no more than a recommendation for law reform and is not binding on the Court of Appeal; the Court of Appeal is bound only by decisions of the Supreme Court
- A new point of law may only exceptionally be taken for the first time on appeal, and not where it would involve disputed facts not investigated or tested at trial
Court orders
#- 1.The consolidated appeals (Criminal Appeal Nos. E037 and E038 of 2023) are dismissed
- 2.The judgment of the High Court of Kenya at Voi (Dulu, J.) delivered on 30th June 2023 is upheld
- On appeal from
- High Court of Kenya at Voi
- Criminal Appeal Nos. E038 & E039 of 2021 (consolidated)
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code - second appeal confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ambuchi v Republic (Criminal Appeal 80 of 2018) [2026] KECA 285 (KLR)[2026] KECA 285 (KLR)13 Feb 2026applied
Cite this brief
#Cite this brief
Caselaw, "Makau & another v Republic (Criminal Appeal E037 & E038 of 2023 (Consolidated)) [2025] KECA 661 (KLR)", Case Analysis (2025). Criminal Appeal Nos. E037 and E038 of 2023 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/661/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.