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Court of AppealDismissedCriminal Appeal No. 67 of 1999

JOSEPH NJOROGE KINGA vs REPUBLIC [2000] KECA 209 (KLR)

Court of Appeal of Kenya
31 March 2000
567 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will not disturb a criminal conviction on a second appeal unless the lower courts' factual findings were truly exceptional or perverse.

What this practically means

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Executive summary

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This is a second appeal against conviction and sentence. The appellant, Joseph Njoroge Kinga, was convicted by the Senior Resident Magistrate, Nairobi, on two counts of unlawful possession of a firearm and ammunition without a firearm certificate contrary to section 4(2)(a) of the Firearms Act (Cap 114), and sentenced to 42 years imprisonment on each count, the sentences to run concurrently. The convictions arose from a police raid on 11th June 1997 at Mwafrica Joji Bar, Githurai, Nairobi, following information that occupants of a room there had firearms; a search of the room and of the bed on which the appellant was sleeping yielded a bag containing a gun and four rounds of ammunition. The appellant's defence of fabrication and denial of presence was disbelieved by the trial court. His first appeal to the High Court (Kuloba, J.) was dismissed on 6th May 1999. Before the Court of Appeal (Tunoi, Shah and O'Kubasu, JJA), counsel argued factual misdirections: a mix-up in the serial number of the recovered gun and inadequate consideration of the appellant's alibi. Delivering a single judgment of the court, the Court of Appeal reaffirmed that on a second appeal it does not interfere with concurrent findings of fact except in very exceptional circumstances, citing Reuben Karari v R and Mohamed Farah Musa v R, and found none of those circumstances present. It held the criticism unjustifiable, the findings neither perverse nor unjudicially arrived at, and the conviction proper. The appeal was dismissed on 31st March 2000, with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the two courts below misdirected themselves on the facts, in particular in respect of the serial number of the recovered gun and the consideration of the appellant's alibi.
  2. 2.Whether this Court, on a second appeal, may interfere with the concurrent findings of fact of the courts below.
  3. 3.Whether the appellant's conviction for unlawful possession of a firearm and ammunition was proper.

Key legal issues

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01

Whether the Court of Appeal may interfere with concurrent findings of fact on a second appeal.

Holding

No. A second appellate court does not interfere with concurrent findings of fact except in very exceptional circumstances, and none of those circumstances existed in this case.

Reasoning

The court invoked the long-standing East African authorities of Reuben Karari v R and Mohamed Farah Musa v R for the rule that a second appeal does not permit disturbance of concurrent findings of fact absent exceptional circumstances. Having examined the whole body of evidence, it found the appellant's criticisms of the two courts below unjustifiable and the findings neither perverse nor unjudicially arrived at, so the threshold for interference was not met.

p. 2
02

Whether the alleged factual misdirections (the serial number of the recovered gun and the treatment of the alibi) vitiated the conviction.

Holding

No. Viewed against the whole body of the evidence and the concurrent findings below, the criticisms were not justifiable.

Reasoning

Counsel for the appellant had argued that the serial number of the gun recovered from the lodge was mixed up with those of other guns and that the alibi was not sufficiently considered by the trial court and the first appellate court. The court, looking at the whole body of the evidence and in the face of the concurrent findings below, held the criticism unjustifiable, and declined to characterise the findings as perverse or unjudicially arrived at.

p. 1
03

Whether the appellant's conviction for unlawful possession of a firearm and ammunition was proper.

Holding

Yes. The appellant was properly convicted and there was no ground whatsoever to interfere with the conviction.

Reasoning

The police officers who conducted the raid at Mwafrica Joji Bar gave detailed evidence of the recovery of a gun and four rounds of ammunition from a bag found in the room and under the bed on which the appellant slept. The trial court disbelieved the appellant's defence of fabrication and denial of presence, and the first appellate court, having gone through all the evidence and submissions, reached the same conclusion. The second appellate court found no basis to disturb that outcome.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal does not interfere with concurrent findings of fact by the two courts below except in very exceptional circumstances.
  • Concurrent findings of fact that are neither perverse nor unjudicially arrived at will not be disturbed on second appeal.

Court orders

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  1. 1.The appeal is dismissed in its entirety, leaving the conviction and the concurrent sentences of 42 years imprisonment intact.

The bench

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

majority
majority
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On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 1396 of 1998
Jurisdiction invoked
Not expressly stated in the judgment; the matter is before the Court of Appeal as a second appeal in a criminal case, the first appeal having been decided by the High Court (Kuloba, J.).

Relief refused

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Allowance of the appeal and interference with the conviction on the two counts of unlawful possession of a firearm and ammunition

The court was satisfied the appellant was properly convicted and found no ground to interfere with the conviction.

p. 2

Reversal of the concurrent findings of fact on the alleged serial-number mix-up and the alibi

On a second appeal the court does not interfere with concurrent findings of fact except in very exceptional circumstances, none of which existed here.

p. 2

Costs

No order as to costs was made; the judgment is silent on costs.

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.

this being a second appeal, this court does not interfere with concurrent findings of fact by the courts below except in certain very exceptional circumstances
p. 2Scope of a second appeal - concurrent findings of fact
We cannot either say that the findings of fact were perverse or were unjudicially arrived at.
p. 2Threshold for appellate interference - perversity of findings
We find no merit in this appeal and we dismiss it.
p. 2Final orders - dismissal of the appeal

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, "JOSEPH NJOROGE KINGA vs REPUBLIC [2000] KECA 209 (KLR)", Case Analysis (2000). Criminal Appeal No. 67 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/209/eng@2000-03-31

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