Azolozo v Republic [1986] KECA 30 (KLR)
The bottom line
#Kenya's Court of Appeal quashed forgery convictions because the documents contained lies but were not themselves 'false documents', and dismissed the State's appeal for lack of jurisdiction.
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 travel warrants were false documents in themselves so as to sustain convictions for forgery under section 349 of the Penal Code
- 2.Whether the Republic has jurisdiction, under the opening words of section 361(1) of the Criminal Procedure Code, to lodge a second appeal (or cross-appeal) to the Court of Appeal against the High Court's allowance of an appeal against convictions for stealing
- 3.If jurisdiction exists, whether the High Court erred in holding that the appellant did not steal the monies stated in counts 2, 4, 6 and 8
Key legal issues
#Whether the travel warrants were forgeries
The convictions on the forgery counts were quashed. Each warrant contained numerous false statements and was fraudulent, but each was what it purported to be - a warrant authorising the journeys stated - and so was not false in itself.
Applying the passage from Kenny's Outlines of Criminal Law (in agreement with Russel on Crime) relied on by the High Court itself, the court distinguished between a document containing false statements and a document which is a false document in itself. The warrants authorised journeys that were never made, but they did not purport to be something other than what they were. Fraudulent false accounting under section 330(a) would have been the appropriate charge, but it was not brought and cannot be substituted on second appeal.
Whether the Republic may maintain a second appeal or cross-appeal against an acquittal by the High Court
By majority, the cross-appeal was dismissed. Platt Ag JA and Gachuhi Ag JA held that section 361(1) does not confer such a right on the Attorney-General; Hancox JA dissented on this point, holding that the Republic, having been a party to the first appeal, is entitled to appeal under the plain words of the sub-section.
The majority reasoned that section 361, read as a whole, was designed for appeals by convicted persons and orders made against them; the state's remedies against acquittals are found in section 348A (appeal to the High Court on a matter of law) and section 379(5) (declaratory appeal on a certificate of exceptional public importance). Since section 361 was not expressly enlarged after the 1967 enactment of section 348A, and there is a presumption against enlarging jurisdiction, the general words cannot accommodate an Attorney-General's appeal against acquittal.
Whether the High Court was right to hold that theft was not proved
Hancox JA held the High Court erred: the circumstantial evidence established beyond reasonable doubt that the appellant stole the monies, the magistrate's finding being based on credibility and entitled to respect on first appeal. This view did not carry the majority, as the cross-appeal was dismissed for want of jurisdiction.
Hancox JA treated the magistrate's finding that the appellant inserted his own vehicle in the warrants for journeys never made as a credibility finding which the first appellate court should have respected unless no reasonable tribunal could have made it or wrong principles were applied. However, because the majority found no jurisdiction to entertain the cross-appeal at all, this merits analysis does not form part of the binding disposition.
Legal principles established
#- A document is not 'false' for the purposes of forgery merely because it contains false statements; it must purport to be something it is not. A warrant containing false details but being what it purported to be is not a forgery.
- A right of appeal does not exist unless conferred by statute; the general words of section 361(1) of the Criminal Procedure Code ('a party to an appeal from a subordinate court') do not, in the view of the majority, confer on the Attorney-General a right of second appeal against an acquittal by the High Court in its appellate jurisdiction.
- Jurisdiction-creating provisions must be expressly enlarged; there is a presumption against creating new and enlarging existing jurisdictions.
Court orders
#- 1.The appellant's second appeal is allowed on counts 1, 3, 5 and 7; the convictions on those forgery counts are quashed and the sentences imposed are set aside
- 2.The Republic's cross-appeal on counts 2, 4, 6 and 8 is dismissed, so the High Court's acquittal on those stealing counts stands
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading judgment. Allowed the appellant's second appeal on the forgery counts (1, 3, 5 and 7) because the travel warrants, though containing false statements, were not false documents in themselves. He would have upheld the Republic's cross-appeal on the stealing counts and remitted sentence, but the majority took a different view and the cross-appeal was dismissed.
However, the majority of the court take a different view and the cross-appeal is therefore dismissed.p. 4
Wrote the judgment
Agreed with the result on the forgery counts but concluded that section 361(1) of the Criminal Procedure Code, originally designed for appeals by convicted persons, was never expressly enlarged to permit the Attorney-General a second appeal against an acquittal by the High Court. He would have quashed all convictions and sentences and set the appellant at liberty.
It follows that I would allow the appeal of the appellant, quash all convictions and sentences, and set him at liberty forthwith unless held for any other lawful cause.p. 7
Wrote the judgment
Agreed with allowing the appellant's appeal on the forgery counts. Held that the state's right of appeal must be specifically conferred by statute; section 348A and section 379(5) of the Criminal Procedure Code contain the only avenues for appeals against acquittals, and there is no specific provision allowing the Attorney-General to appeal from an acquittal by the High Court in its appellate jurisdiction. The cross-appeal should be struck out.
I feel that" "a party to an appeal" in this section does not include the Attorney-General.
- On appeal from
- High Court at Kisumu
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal to the Court of Appeal on a matter of law)
Relief refused
#The Republic's cross-appeal seeking restoration of the convictions on the stealing counts (2, 4, 6 and 8)
The majority (Platt Ag JA and Gachuhi Ag JA) held that no statutory right of appeal to this Court was conferred on the Attorney-General under section 361(1) of the Criminal Procedure Code against an acquittal by the High Court on first appeal
Substitution of a conviction for fraudulent false accounting under section 330(a) of the Penal Code
No such charges were brought at trial and section 361(4) of the Criminal Procedure Code does not enable the Court of Appeal to substitute a conviction under section 330 on second appeal
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.
The result is, then that we allow the appellant’s second appeal on counts 1, 3, 5 and 7, quash the convictions thereon and set aside the sentences imposed.
However, the majority of the court take a different view and the cross-appeal is therefore dismissed.
It follows that I would allow the appeal of the appellant, quash all convictions and sentences, and set him at liberty forthwith unless held for any other lawful cause.
I feel that the cross appeal filed by the Attorney-General is not proper and it should be struck out.
It is well-settled that a right of appeal does not exist unless it is conferred by Statute
But it cannot be said that the warrants were false in themselves, in that they purported to be what they were not.
There is a presumption against creating new and enlarging existing jurisdictions
Issues in the judgment
#The separate opinions of Platt Ag JA and Gachuhi Ag JA each refer to allowing the appeal on counts '1, 3 and 7', while the leading judgment and the disposition refer to counts '1, 3, 5 and 7', creating an internal inconsistency as to the counts quashed.
The coram describes Platt and Gachuhi as 'Ag JJA' (acting judges of appeal) and the delivered judgment records Platt's title as 'JUDGE OF APPEAL', so the precise rank at delivery is not stated consistently.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Azolozo v Republic [1986] KECA 30 (KLR)", Case Analysis (1986). Criminal Appeal No 88 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/30/eng@1986-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.