Wainaina v Republic (Criminal Appeal 96 of 2019) [2025] KECA 1184 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery-with-violence appeal, confirming that second appeals can only challenge legal errors, not re-test facts already decided by two lower courts.
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 appellant was properly identified
- 2.Whether crucial witnesses were not called to testify
- 3.Whether the appellant's defence was considered
- 4.Whether the prosecution proved its case to the required standard
Key legal issues
#Second appeal limited to matters of law
The Court's jurisdiction on second appeal is confined to questions of law under section 361(1) of the Criminal Procedure Code, and it must accept concurrent findings of fact of the two lower courts absent error of law.
Section 361(1) bars the Court from hearing second appeals on matters of fact or against sentence except where enhanced. Concurrent factual findings stand unless based on no evidence, a perversion of evidence, or on the totality of the evidence no reasonable tribunal would reach them. Failure by the first appellate court to re-evaluate evidence is a matter of law.
Identification of the appellant
The appellant was positively identified by PW2 in broad daylight and later picked out at an identification parade; PW4's evidence placing him in the stolen lorry corroborated this.
The robbery occurred in daylight with ample opportunity for observation. PW2 identified the appellant at the scene and at an identification parade, and PW4 found the appellant in the carjacked vehicle with the deceased's documents. These were concurrent findings of fact that the Court could not disturb, and even discounting the parade, the remaining evidence sufficed.
Failure to call crucial witnesses
No adverse inference arises where the uncalled witnesses (masons, the Chief, medical personnel) would not have added to the prosecution case, since the evidence called was more than barely adequate.
Section 143 of the Evidence Act requires no particular number of witnesses. The adverse-inference rule in Bukenya applies only where the prosecution evidence is barely adequate. The masons did not witness the incident, the Chief merely relayed information, and the case did not hinge on treatment administered, so their absence was immaterial.
The appellant's defence and alibi
Strictly, the appellant's account was not an alibi because it addressed his arrest, not his whereabouts at the time of the robbery; in any event it was raised too late, in an unsworn statement, as an afterthought.
An alibi requires an explanation of where the accused was at the time of the offence, not at the time of arrest. The defence was raised for the first time in the unsworn statement after prosecution witnesses had testified, denying the prosecution an opportunity to test it, and did not raise a reasonable doubt.
Proof of robbery with violence to the required standard
All ingredients of robbery with violence under section 296(2) of the Penal Code were proved beyond reasonable doubt; proof of any single ingredient suffices.
The appellant and his attackers were armed and more than one in number, used threats on PW2, assaulted the deceased leading to his death, and stole the lorry, money and personal effects. The particulars alleged both presence of another offender and wounding of the deceased, satisfying at least two of the three statutory ingredients.
Probative value of an unsworn statement
The Court cautioned against the prosecution's sweeping claim that an unsworn statement has no probative value; it is not evidence in the strict sense but may be given such weight as the court thinks fit.
Following Okumu v Republic and Amber May v Republic, the Court clarified that an unsworn statement is not sworn evidence that can be cross-examined to, but it is 'evidence' in the sense that the court may weigh it alongside the whole evidence when deciding whether the prosecution has made out its case.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law; it will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence, or the courts considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong.
- The prosecution is not bound to call a plurality of witnesses; an adverse inference from failure to call a witness arises only where the evidence called is barely adequate.
- An unsworn statement by an accused is not evidence in the strict sense; it cannot be cross-examined to, but the court may give it such weight as it thinks fit and must consider it in relation to the whole of the evidence.
- An alibi should be raised at the earliest opportunity, ideally during cross-examination of prosecution witnesses; an alibi raised for the first time in an unsworn statement at trial throws an unreasonable burden on the prosecution to check and test it.
Court orders
#- 1.The appeal is dismissed; the conviction and sentence imposed by the trial court and upheld by the High Court stand.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Naivasha
- High Court Criminal Appeal No 20 of 2017
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Setting aside the conviction and sentence for robbery with violence
The Court found the identification sound, the uncalled witnesses immaterial, the defence raised too late, and all ingredients of the offence proved beyond reasonable doubt.
Costs
No costs order is recorded 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.
Having considered the submissions made in this appeal, we find no merit in it. The appeal is, in those premises, dismissed.
Where there are concurrent findings of fact by the two courts below, this court is bound by those findings unless it is shown that they were based on no evidence
the jurisdiction of this Court on a second appeal is confined to matters of law
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
an unsworn statement is not strictly speaking evidence, and the rules of evidence cannot strictly be applied to an unsworn statement.
even if that evidence is discounted, the evidence of PW2 and PW4 is suficient to place the appellant both at the scene of robbery and thereafter in possession of the vehicle
Issues in the judgment
#The case title and appellant's name are not expressly stated in the judgment; the appellant's name is inferred from the narration that co-accused 'Benson Wachira Thairu, was tried separately in Naivasha Criminal Case Number 963 of 2014' while the appellant is described as one of the three occupants arrested in the lorry and re-arrested after absconding. The identity of the appellant is not definitively named in the text.
The Court states the prosecution's submission that an unsworn statement has no probative value 'may not entirely correct', yet the passage it goes on to quote from Amber May v Republic itself declares 'It has no probative value', creating a tension between the Court's caution and the quoted holding.
No costs order appears anywhere in the judgment, including at the disposition.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wainaina v Republic (Criminal Appeal 96 of 2019) [2025] KECA 1184 (KLR)", Case Analysis (2025). Criminal Appeal (as arising from High Court Criminal Appeal No 20 of 2017, Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1184/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.