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Court of AppealDismissedCriminal Appeal No 61 of 1981

ERNEST IMBINDI vs REPUBLIC [1983] KECA 94 (KLR)

Court of Appeal of Kenya
4 May 1983
1,130 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals only address points of law and co-accused confessions can corroborate guilt.

What this practically means

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Executive summary

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The Court of Appeal (Potter, Kneller and Hancox, JJ.A) dismissed the second appeals of Ernest Imbindi and Adriano Achesa against convictions for robbery and sentences of seven years' imprisonment, twelve strokes of corporal punishment and five years' police supervision. The appellants had been convicted by the Senior Resident Magistrate at Kisumu and their consolidated first appeals dismissed by the High Court (Trevelyan and Chesoni, JJ). Ernest's case rested on a repudiated enquiry statement and charge-and-caution statement admitted after a trial within a trial, corroborated by the Assistant Chief's evidence and by references in his co-accused's statements. Adriano's confessions were corroborated by identification-parade evidence and his unchallenged admission to the Assistant Chief. The Court endorsed the High Court's ruling that retracted and repudiated confessions of co-accused may be taken into account as corroboration against a co-accused, citing Anyumba s/o Omolo v R and Tuwamoi v Uganda. Both appellants declined to attend their appeals, whose grounds disclosed no points of law; the Court reaffirmed that it has no jurisdiction on second appeal to review sentence for severity. While dismissing the appeals, the Court agreed with two High Court criticisms of the trial: the magistrate should not have reduced the proved robbery-with-violence charge under section 296(2) to simple robbery under section 296(1), and a single consolidated trial within a trial for multiple impugned statements was wrong, each challenge requiring individual consideration.

Questions the Court framed

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

  1. 1.Whether the appellants' grounds of appeal disclose points of law on a second appeal
  2. 2.Whether the repudiated confessions of the appellants were properly admitted and sufficiently corroborated
  3. 3.Whether confessions of co-accused may serve as corroboration
  4. 4.Whether the magistrate was right to reduce the charge from robbery with violence contrary to section 296(2) to simple robbery contrary to section 296(1)
  5. 5.Whether a single consolidated trial within a trial for multiple statements was proper

Key legal issues

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01

Whether the Court of Appeal could interfere with the sentences on second appeal

Holding

It could not; jurisdiction on second appeal is confined to points of law and does not extend to reviewing sentence for severity

Reasoning

The appeal was a second appeal confined to points of law. The High Court had confirmed the convictions on its own assessment of the evidence. Since the grounds of appeal disclosed no grounds of law, and sentence severity is not a point of law, the Court had no power to interfere, even though it observed the appellants were fortunate not to face the death penalty.

p. 2
02

Whether co-accused confessions may corroborate

Holding

Yes; retracted and repudiated confessions of co-accused may be taken into account as corroboration against a co-accused tried for the same offence

Reasoning

Adopting the High Court's passage with approval, and citing Anyumba s/o Omolo v R and Tuwamoi v Uganda, the Court held that confessions sufficient to justify the makers' convictions may be taken into account against co-accused even if retracted, though other evidence against the co-accused is still required and corroboration merely tends to confirm other evidence.

p. 2
03

Whether one consolidated trial within a trial for several impugned statements was proper

Holding

No; a separate trial within a trial is required for each impugned statement

Reasoning

The magistrate had held one trial within a trial for four accused in respect of statements made on three different dates because all were recorded by one prosecution witness. The High Court held this was wrong, and the Court of Appeal fully agreed, holding that each challenge is entitled to individual consideration. This criticism did not, however, lead to quashing the convictions.

p. 3
04

Whether the magistrate was right to reduce the charge under section 296(2) to simple robbery under section 296(1)

Holding

No; the charge of robbery with violence was proved as laid and the magistrate should not have reduced it

Reasoning

The complainants were wounded and the accused were armed with offensive weapons, satisfying robbery with violence under section 296(2) of the Penal Code. The magistrate said he reduced the charge with reluctance but the reason was unclear. The Court of Appeal fully agreed with the High Court that the reduction should not have been made, noting the appellants were fortunate not to have been convicted of the capital offence.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal is confined to points of law; the Court has no jurisdiction to review sentence on the ground of severity
  • Confessions of co-accused, even if retracted and repudiated, may be taken into account as corroboration against a co-accused tried for the same offence, provided they are confessions sufficient to justify the makers' convictions
  • A separate trial within a trial must be held for each impugned statement; one consolidated trial within a trial for statements made by several accused on different dates is wrong
  • Corroboration is no more than something tending to confirm other evidence

Court orders

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  1. 1.Ernest Imbindi's appeal against conviction and sentence dismissed
  2. 2.Adriano Achesa's appeal against conviction and sentence dismissed

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Kisumu High Court Criminal Appeal Nos 194 & 195 of 1980
Jurisdiction invoked
Second appeal to the Court of Appeal under the Penal Code/Criminal Procedure regime; a second appeal confined to points of law

Relief refused

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Review of sentence on grounds of severity

The Court of Appeal has no jurisdiction to review sentence on second appeal on grounds of severity

p. 2

Ernest Imbindi's appeal against conviction and sentence

Grounds disclosed no points of law and conviction was confirmed by the High Court

p. 2

Adriano Achesa's appeal against conviction and sentence

Grounds disclosed no points of law and the confessions were properly admitted and corroborated

p. 2

Costs

No order as to costs appears 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.

Ernest's appeal against conviction and sentence are dismissed.
p. 2Disposition - first appellant
Adriano's appeal are also dismissed.
p. 2Disposition - second appellant
This court has no jurisdiction to review a sentence on second appeal on the grounds of severity.
p. 2Jurisdiction on second appeal
A separate trial within a trial should be held for each impugned statement. Each challenge is entitled to its individual consideration.
p. 3Trial within a trial
corroboration is no more than something tending to confirm other evidence.
p. 2Nature of corroboration

Issues in the judgment

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minor

The coram lists Trevelyan and Chesoni as 'JJ.A' though they were High Court judges deciding the first appeal; the judgment also describes them as 'Trevelyn and Chesoni JJ'

minor

The record shows the appellants were convicted of robbery under Section 296(1) and the Court states Ernest was 'fortunate not to have been convicted of the offence with which he was charged', while elsewhere stating the 296(2) charge was proved as laid

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ERNEST IMBINDI vs REPUBLIC [1983] KECA 94 (KLR)", Case Analysis (1983). Criminal Appeal No 61 of 1981. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/94/eng@1983-04-05

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