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Court of AppealDismissedNot stated in judgment

Njoroge v Republic [1982] KECA 19 (KLR)

Court of Appeal of Kenya
15 March 1982
ELE.J.E LawCMC.H.E MillerKPK.D Potter
487 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant was convicted by the Resident Magistrate's Court at Thika of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to the mandatory death sentence. His first appeal to the High Court was dismissed. On second appeal, counsel for the appellant argued that an eyewitness, Mr Kariuki, was unreliable because he had picked out a person who was not a suspect at a subsequent identification parade, and because he had seen the robber for only a very short time. The Court of Appeal (Law, Miller and Potter, JJ of Appeal) reiterated that on a second appeal it is concerned only with points of law and is bound by the concurrent findings of fact of the two courts below unless shown to be based on no evidence. The concurrent findings were that two witnesses - a bank cashier and a policeman present in the bank - identified the appellant as the armed robber at properly conducted identification parades, the policeman having seen him both inside and outside the bank. The first appellate court had given careful consideration to the alleged unreliability and found the witness's evidence supported by the second identifying witness. The Court distinguished the single-witness danger cases of Wendo v R and Roria v R, holding that two consistent identifications supported by evidence removed the case from their scope. The appeal failed and was dismissed; no costs order is recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the concurrent findings of fact by the two courts below, that the appellant was correctly identified by two eyewitnesses at properly conducted identification parades, could be disturbed on second appeal
  2. 2.Whether the evidence of Mr Kariuki became unreliable because he also picked out a person who was not a suspect at a subsequent identification parade

Key legal issues

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01

Scope of second appeal and treatment of concurrent findings of fact

Holding

The Court is confined to points of law and bound by concurrent findings of fact based on evidence; such findings cannot be disturbed on second appeal.

Reasoning

A second appeal does not permit re-evaluation of evidence. Where two lower courts have made concurrent findings of fact, and those findings are supported by evidence, the Court of Appeal will not interfere. Identification by two witnesses at properly conducted parades, one of whom saw the appellant both inside and outside the bank, constituted evidence supporting the findings, rendering them binding on the Court.

p. 1
02

Reliability of an identifying witness who also picked out a non-suspect

Holding

Picking out an innocent person at a later parade did not, on these facts, render the witness unreliable, because identification was corroborated by a second witness and confirmed at properly conducted parades.

Reasoning

The first appellate court had carefully considered the alleged unreliability and held the witness reliable: he picked out the appellant, and his identification was supported by a police officer who saw the appellant inside and outside the bank and identified him at a parade. Two consistent identifications removed the case from single-witness dangers under difficult conditions addressed in the cited authorities.

p. 1

Legal principles established

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  • On a second appeal, the Court of Appeal is concerned only with points of law and is bound by concurrent findings of fact of the lower courts unless those findings are shown to be based on no evidence.

Court orders

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  1. 1.The appeal fails and is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EL
majority
CM
majority
KP
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Second appeal to the Court of Appeal on points of law (as stated in the judgment: 'we are only concerned with points of law')

Relief refused

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Allowance of the appeal against conviction for robbery with violence

Concurrent findings of fact by both lower courts, based on evidence, that the appellant was correctly identified by two witnesses are binding on the Court on second appeal

p. 1

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

On this second appeal, we are only concerned with points of law and consider ourselves bound by the concurrent findings of fact arrived at in the courts below, unless shown to be based on no evidence.
p. 1Scope of second appeal - points of law only
In this case, on the concurrent findings of both courts below, the appellant was identified by two witnesses and there was evidence to support those findings, which are accordingly binding on this Court.
p. 1Binding effect of concurrent findings of fact
It follows that in our view, this appeal fails and must be dismissed, and we so order.
p. 2Final orders - dismissal of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njoroge v Republic [1982] KECA 19 (KLR)", Case Analysis (1982). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/19/eng@1982-03-15

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