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Court of AppealDismissedCriminal Appeal No. 73 of 2000

WILLIAM OMONDI NYAMBARE vs REPUBLIC [2001] KECA 87 (KLR)

Court of Appeal
25 January 2001
ROR. S. C. OmoloALA. A. LakhaEOE. O'Kubasu
1,133 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that objections you fail to raise at trial cannot be raised for the first time on appeal.

What this practically means

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Executive summary

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William Omondi Nyambare was convicted in the magistrate's court on two counts of theft by a servant contrary to section 281 of the Penal Code, having stolen Shs.300,000 and Shs.400,000 from his employer, the Kenya Ports Authority, on 12th and 13th April 1995 while employed as a banking cashier. He was sentenced to four years' imprisonment on each count, the sentences to run concurrently. His first appeal to the High Court at Mombasa (Waki, J.) was dismissed on 26th November 1999, and he brought this second appeal to the Court of Appeal at Mombasa, arguing six grounds together in person. As a second appeal, the Court confined itself to matters of law, which it identified as the allegedly wrongful production of prosecution documents and the absence of evidence as to who altered the paying-in slips. On admissibility, the court held that the appellant, who was represented by counsel in the magistrate's court, raised no objection when the bank statements and certified paying-in slips were offered, and that under the proviso to section 382 of the Criminal Procedure Code an objection that could and should have been raised earlier cannot sustain a challenge on appeal. The court applied the old Court of Appeal for Eastern Africa decision in Rahim Bux s/o Noor Mohamed v Reginam. The document examiner's report, produced by the investigating officer under section 77 of the Evidence Act, was likewise unimpeachable because the appellant never sought the examiner's attendance for cross-examination, which the magistrate could have ordered under section 77(3). The concurrent finding that the appellant made the alterations was left undisturbed. The appeal was dismissed in its entirety; no costs order was made.

Questions the Court framed

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

  1. 1.Whether documents relied on by the prosecution - the bank statements and certified copies of paying-in slips - were wrongly produced in evidence.
  2. 2.Whether the document examiner's report was properly produced in evidence by P.W.7 rather than by the examiner himself.
  3. 3.Whether there was evidence establishing that the alterations on the paying-in slips were made by the appellant.

Key legal issues

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01

Scope of a second appeal to the Court of Appeal

Holding

Only matters of law are cognisable on a second appeal; concurrent factual findings of the two courts below are not disturbed absent compelling argument.

Reasoning

The court identified itself as a second appellate court whose concern is confined to questions of law. It isolated the legal complaints - wrongful production of documents and unexplained alterations - and declined to revisit the concurrent factual finding on the alterations because no compelling argument for reversal was advanced. The restrictive approach mirrors the old Court of Appeal for Eastern Africa authority in Rahim Bux.

p. 1
02

Whether the bank statements and certified paying-in slips were wrongly produced in evidence

Holding

No objection was taken when the documents were offered, and the objection raised in submissions long after production came too late; the documents were admissible under the special provisions of the Evidence Act for bankers' books and certified copies.

Reasoning

The appellant was represented by counsel in the magistrate's court and saw the prosecution offer the documents without raising the slightest objection, depriving the magistrate of the opportunity to rule on admissibility. The proviso to section 382 of the Criminal Procedure Code required the court to consider whether the objection could and should have been raised earlier. Since the documents were capable of admissibility under certain circumstances, no failure of justice was occasioned.

p. 2
03

Whether the document examiner's report was properly received when produced by the investigating officer rather than by the examiner

Holding

Production of the report by P.W.7 under section 77 of the Evidence Act caused no irregularity; the appellant never sought the examiner's attendance for cross-examination, which the magistrate could have ordered under section 77(3).

Reasoning

The court treated this point as governed by the same considerations as the admissibility complaint. The report was produced under section 77 of the Evidence Act, and nothing prevented the appellant from asking the magistrate to summon the examiner for cross-examination under section 77(3). Having never indicated any such wish at trial, the appellant could not seek to invalidate the convictions on appeal for the examiner's absence.

p. 2
04

Whether the alterations on the paying-in slips were attributable to the appellant

Holding

The examiner's report satisfied both courts below that the alterations must have been made by the appellant, and the Court of Appeal heard no compelling argument warranting reversal of that concurrent finding.

Reasoning

This was a question of fact decided by the trial magistrate and confirmed on first appeal. Sitting as a second appellate court concerned only with matters of law, and hearing no compelling argument from the appellant, the court declined to interfere with the concurrent conclusion drawn from the examiner's report.

p. 2

Legal principles established

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  • On a second appeal to the Court of Appeal, only matters of law fall for determination.
  • A party who takes no objection when documents are offered in evidence at trial cannot later contend that the documents were wrongly produced; the objection is taken too late if raised for the first time on appeal.
  • Under the proviso to section 382 of the Criminal Procedure Code, an error, omission or irregularity does not occasion a failure of justice where the objection could and should have been raised at an earlier stage of the proceedings.
  • Where a document such as a document examiner's report is produced under section 77 of the Evidence Act, a party who wishes to challenge it must seek the maker's attendance for cross-examination at trial; the magistrate has power under section 77(3) to summon the maker, and the complaint cannot be raised for the first time on appeal.

Court orders

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  1. 1.The appeal is and is hereby dismissed; the convictions on two counts of theft by a servant and the concurrent sentences of four years' imprisonment on each count, upheld on first appeal, stand undisturbed.

The bench

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

RO
majority
AL
majority
EO
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. NO. 39 OF 1998
Jurisdiction invoked
Second appeal to the Court of Appeal in a criminal matter; the judgment cites no specific enabling provision, proceeding only on the basis that 'As this is a second appeal, only matters of law can be of interest to us.'

Relief refused

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Invalidation of the convictions on the ground that the bank statements and certified paying-in slips were irregularly produced in evidence

The appellant, though represented by counsel in the magistrate's court, raised no objection when the documents were offered; under the proviso to section 382 of the Criminal Procedure Code the objection could and should have been raised earlier, and the documents were in any event admissible under the special provisions of the Evidence Act.

p. 2

Invalidation of the convictions on the ground that the document examiner did not testify to his report, which was produced by P.W.7

The report was produced under section 77 of the Evidence Act; had the appellant wished to cross-examine the examiner he could have asked the magistrate to summon him under section 77(3), but he never did so.

p. 2

Reversal of the finding that the alterations on the paying-in slips were made by the appellant

The examiner's report satisfied both courts below on this factual issue and no compelling argument was advanced to warrant reversal on a second appeal confined to matters of law.

p. 2

Costs

No order as to costs was made 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.

There is no merit in this appeal and we order that it be and is hereby dismissed.
p. 2Final orders - dismissal of the appeal
it is now too late in the day to ask us to invalidate the convictions on the ground that documents were irregularly put in evidence.
p. 2Objection to admissibility not taken at trial comes too late
Having failed to say that he wanted to cross-examine the documents examiner, it is now too late in the day to ask this Court to invalidate the convictions on the ground that the document examiner was not called to testify.
p. 2Failure to seek cross-examination of the maker of a report
As this is a second appeal, only matters of law can be of interest to us.
p. 1Scope of a second appeal
if the appellants wished to rely upon the point they should have taken at the trial and it is now too late to take it on a second appeal
p. 2Rahim Bux - points not taken at trial cannot be raised on second appeal

Issues in the judgment

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minor

A passage of the judgment is garbled in the source text (apparent OCR/typographical corruption), obscuring what the appellant's complaint - apparently as to the severity of the sentence - was; other passages show similar spacing artefacts (e.g. 'Eviden ce Act', 'irregu larly', 'paying - in slips').

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "WILLIAM OMONDI NYAMBARE vs REPUBLIC [2001] KECA 87 (KLR)", Case Analysis (2001). Criminal Appeal No. 73 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/87/eng@2001-01-25

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