David Kiarie Kamau v Republic [2006] KECA 73 (KLR)
The bottom line
#Kenya's Court of Appeal threw out the appeal, keeping the robbery conviction intact and confirming an experienced police firearms examiner counts as an expert witness.
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 learned Judges of the High Court erred in law in accepting the evidence of the firearms examiner where no qualifications were given to entitle him to be treated as an expert (including whether there was a nexus between the exhibits examined and those recovered from the appellant).
- 2.Whether the learned Judges of the High Court erred in law in affirming the conviction by holding that the inconsistencies in the evidence of the three eyewitness brothers were neither important nor prejudicial to the appellant.
- 3.Whether the concurrent findings of the two lower courts that the appellant was positively identified as one of the robbers were safe and free from error, given the conditions of identification.
- 4.What the correct sentencing procedure is where a capital count is charged together with lesser counts attracting imprisonment - in particular the propriety of the High Court's imposition and suspension of five-year terms on the two Firearms Act counts.
Key legal issues
#Whether SACP Benson Gichuki qualified as an expert whose opinion evidence could be relied on to prove the firearm and ammunition.
Yes. The absence of formally pleaded qualifications did not disqualify him; his experience and skill were satisfactorily demonstrated and the trial court was entitled to accept his opinion, which was consistent with the wide definition of "firearm" in section 2 of the Firearms Act.
Section 48(1) of the Evidence Act admits opinions of persons specially skilled in science or art. Restating the Mutonyi definition, the Court noted that Gichuki had spent twenty years testing, examining and identifying firearms, ammunition and spent cartridges in the Kenya Police, explained his methodology in a report produced in evidence, and was not challenged in cross-examination on any aspect except a clarification made at the court's instance that the pistol, though in poor condition, could be adapted to discharge a bullet. His experience and skill were thus satisfactorily demonstrated.
Whether there was a nexus between the pistol and ammunition examined by the firearms examiner and those recovered from the appellant.
Yes. Clear concurrent findings established the chain of custody, and on a second appeal the Court would not disturb them; the ground failed.
The Court relied on clear concurrent findings that PW2 recovered the pistol and ammunition from the appellant's person during the arrest and handed them to the officers who arrived at the scene, including Cpl. Simiyu and Pc. Ndegwa, who confirmed receipt. Cpl. Simiyu in turn handed over the items and the arrested appellant to IP Munyua, the investigating officer, who completed the exhibits memo and passed the recovered items to SACP Gichuki for examination. The Court saw no reason to doubt that evidence.
Whether the inconsistencies, discrepancies and contradictions in the evidence of the three eyewitness brothers rendered the identification of the appellant unsafe.
No. The inconsistencies were not material, did not taint the witnesses' demeanour or credibility, and the concurrent findings that the appellant was properly identified disclosed no error of law or principle.
The identification evidence accepted by both courts below showed that the appellant first entered the house alone and conversed with the brothers under a lighted kerosene lamp for about fifteen minutes, and that PW2 followed the robbers outside and never lost sight of the appellant before apprehending him at the scene and recovering the pistol from his socks. The noted inconsistencies - over who opened the door and the sequence of entry - did not go to the substance of the charge. On a second appeal only errors of law could justify interference, and none was shown.
The correct sentencing procedure where a capital count is charged together with lesser counts attracting imprisonment.
The correct procedure is to impose the death sentence on one count only and leave the sentences on the other counts, including any prison terms, in abeyance. The trial magistrate's approach was right; the High Court's imposition and suspension of five-year terms on the two Firearms Act counts was erroneous - although no order was made disturbing those sentences.
Raising the point of its own motion, the Court rehearsed its settled procedure from Abdihussein, Muiruri, Abdul Debano Boye and Samwel Waithaka Gachuru: a convict cannot be hanged twice, so once the death sentence is imposed there is no sense in a prison term; if the appeal on the capital count later succeeds, the appellate court may consider all counts and impose appropriate sentences. It held the trial court's procedure right and the superior court's intervention erroneous. Because the appeal was dismissed in its entirety, the impugned sentences were left standing.
Legal principles established
#- On a second appeal to the Court of Appeal only matters of law may be raised, and the Court will not interfere with concurrent findings of fact made by the two lower courts unless those findings are shown to be based on no evidence or on a perversion of it.
- Where an accused is convicted on a capital count charged together with lesser counts attracting imprisonment, the sentencing court must impose the death sentence on one count only and leave the sentences on the other counts, including any term of imprisonment, in abeyance; a prison term may not properly be imposed (or imposed and suspended) alongside a sentence of death.
- Expert evidence under section 48(1) of the Evidence Act is evidence given by a person skilled and experienced in a professional or special sphere of knowledge, who reaches conclusions on the basis of that knowledge from facts reported to him or discovered by him by tests, measurements and the like; a witness whose experience and skill are satisfactorily demonstrated (and unchallenged in cross-examination) is an expert whose opinion the trial court is entitled to accept.
Court orders
#- 1.The appeal is dismissed in its entirety: "In the result the appeal has no merits and we order that it be and is hereby dismissed in its entirety." (The convictions and sentences of the two courts below, including the five-year suspended sentences on the Firearms Act counts which the Court criticised as erroneous, were left undisturbed.)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. NO. 1124 OF 2001
- Jurisdiction invoked
- Second appeal to the Court of Appeal; the judgment cites no enabling provision but proceeds on the rule that on a second appeal "only matters of law may be raised".
Relief refused
#Quashing of the convictions on the ground that material contradictions in the evidence of the three eyewitness brothers undermined the identification of the appellant.
The inconsistencies were immaterial, did not dent the witnesses' credibility, and the identification was safe: the appellant entered the house alone under a lighted kerosene lamp, spent about fifteen minutes with the witnesses, and PW2 never lost sight of him before arresting him at the scene with the pistol hidden in his socks.
Disqualification or exclusion of the evidence of the firearms examiner, SACP Benson Gichuki, and the impugning of the nexus between the items examined and those recovered from the appellant.
His twenty years' experience testing, examining and identifying firearms in the Kenya Police satisfactorily demonstrated expertise under section 48(1) of the Evidence Act and the Mutonyi definition; he was not challenged in cross-examination; and clear concurrent findings established the chain of custody from PW2's recovery of the pistol through the police to the examiner.
Costs
The judgment makes no order as to costs.
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.
In the result the appeal has no merits and we order that it be and is hereby dismissed in its entirety.
As this is a second appeal, only matters of law may be raised and this Court would not interfere with concurrent findings of fact made by the two lower courts unless those findings are shown to be based on no evidence or on a pervasion of it
We have repeatedly said that where an accused person is convicted on more than one capital charge as was the case here, the sensible thing to do is to sentence him to death on only one of the counts and leave the others in abeyance, including any sentence of imprisonment.
It is clear from those authorities that the trial court was right in the procedure it adopted.
evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like.
Such inconsistencies as there may have been between the three witnesses did not dent their demeanor and credibility which, the trial court expressly noted on each of the witnesses, was reliable.
Issues in the judgment
#Internal tension between the Court's pronouncement and its disposition: the Court expressly declares the High Court's sentencing procedure erroneous, yet the operative order simply dismisses the appeal "in its entirety" and makes no order setting aside the impugned five-year suspended sentences on the two Firearms Act counts.
The firearms examiner's surname is inconsistently spelled within the judgment - "SACP Gichuki" throughout the Court's own narrative, but "SACP Gichuhi" in the recital of counsel's submission.
Typographical anomaly in the statement of the second-appeal standard: the judgment reads "pervasion" where the established formulation is "perversion" of evidence; practitioners quoting the passage should note the error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiarie Kamau v Republic [2006] KECA 73 (KLR)", Case Analysis (2006). Criminal Appeal 322 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/73/eng@2006-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.