SAID ABEID SAID vs REPUBLIC (? 101 of 1999) [2000] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot re-examine facts on a second appeal, and a conviction survived despite a P.3 Form irregularity.
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 Court of Appeal on a second appeal can interfere with concurrent findings of fact by the trial magistrate and the High Court
- 2.Whether the admission of the P.3 Form without an opportunity to cross-examine the doctor rendered the conviction unsafe
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal
The court will not entertain matters of fact on a second appeal where those findings were properly accepted by the trial magistrate and the High Court.
The court distinguished between matters of fact, which are settled by the two courts below, and matters of law, which alone are open on a second appeal. Both the trial magistrate and the High Court Judges had accepted the complainant's evidence that he was attacked by four people, so the appellant's attempt to cast doubt on those findings was outside the court's jurisdiction.
Admissibility of the P.3 Form and effect of non-disclosure of the right to cross-examine the doctor
Although the appellant was not informed of his right to have the doctor cross-examined, the irregularity was not fatal because the charge of robbery with violence did not depend on the P.3 Form.
Section 77 of the Evidence Act permits production of a medical report without calling the practitioner. The respondent conceded the irregularity but argued, and the court agreed, that the ingredients of robbery with violence under section 296(2) were proved by other evidence: the appellant was armed with a knife and acted in company of others, as found by both courts below.
Legal principles established
#- On a second appeal, the Court of Appeal has no jurisdiction to concern itself with matters of fact that were properly accepted by the trial court and the first appellate court.
- A conviction for robbery with violence under section 296(2) of the Penal Code may be sustained by evidence independent of a P.3 Form even where the form was admitted without the accused being informed of the right to cross-examine the doctor.
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. No. 300 of 1997
- Jurisdiction invoked
- Second appellate jurisdiction over a criminal appeal from the High Court exercising first appellate jurisdiction
Relief refused
#Quashing of the conviction for robbery with violence
The conviction was supported by ample evidence independent of the P.3 Form, and factual findings were not open to review on a second appeal
Costs
No costs order was made 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.
This being a second appeal, this court has no jurisdiction and will not concern itself with matters of facts which in any event, have been properly accepted by the trial magistrate and the superior court.
There is no basis upon which we can on a second appeal, interfere with these findings of facts.
We accordingly dismiss the appeal because the appellant's conviction by the magistrate was supported by other evidence.
Issues in the judgment
#The judgment text contains a typographical corruption where the complainant's name runs into the following sentence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAID ABEID SAID vs REPUBLIC (? 101 of 1999) [2000] KECA 86 (KLR)", Case Analysis (2000). Criminal Appeal No. 101 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/86/eng@2000-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.