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Court of AppealDismissedCriminal Appeal 40 of 2005

Nahashon Karuri Karue v Republic [2006] KECA 82 (KLR)

Court of Appeal of Kenya
27 October 2006
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that on a second appeal, it will not overturn a criminal conviction unless the lower courts made an error of law.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nyeri by Nahashon Karuri Karue, the sole appellant, against the decision of the High Court (Khamoni and Okwengu JJ) of 14 October 2004, which had consolidated three first appeals arising from Criminal Case No. 445 of 2002 before the Senior Resident Magistrate's Court at Karatina. All three accused had been convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. The High Court allowed the appeals of Ifraim and Godfrey, acquitting them because the complainant's identification evidence was potentially impaired by alcohol and because suspicion is not evidence, but dismissed Nahashon's appeal. Nahashon's co-accused had been acquitted, but he alone appealed to the Court of Appeal. Counsel raised five grounds, including the failure to determine the alternative handling charge under section 322(2) and insufficiency of proof beyond reasonable doubt. The Court of Appeal found concurrent findings of fact by the trial court and the superior court that Nahashon was not truthful: the stolen mobile phone was recovered from behind his house at his pointing out, and his claim that the complainant had lent it to him was rejected. The Court discerned no error of law in either judgment, emphasising the trial magistrate's advantage in assessing demeanour, and dismissed the appeal in its entirety, leaving the conviction and mandatory death sentence standing. The judgment was delivered as a single judgment of the whole court on 27 October 2006 by Bosire, Waki and DevereLL JJA.

Questions the Court framed

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

  1. 1.Whether the concurrent findings of fact by the trial court and the superior court that Nahashon was not truthful and was one of the robbers could be disturbed on second appeal
  2. 2.Whether the superior court erred in law in failing to address the alternative charge of handling stolen goods against the appellant
  3. 3.Whether the prosecution proved its case against the appellant beyond reasonable doubt

Key legal issues

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01

Effect of concurrent findings of fact on second appeal

Holding

A second appeal is confined to matters of law; concurrent findings of fact by the trial court and the first appellate court bind the Court of Appeal absent a demonstrated error of law.

Reasoning

The Court noted that both the Senior Resident Magistrate and the High Court had made concurrent findings that Nahashon was not truthful: the phone was recovered from behind his house at his pointing out, and his claim that the complainant gave him the phone to keep was rejected. The Court emphasised that the trial magistrate had the advantage of seeing witness demeanour and that it had discerned no error of law in either judgment, leaving no basis for interference.

p. 4
02

Suspicion versus proof beyond reasonable doubt

Holding

Suspicion, no matter how strong, is not evidence and cannot sustain a conviction; where doubt exists the benefit must go to the accused.

Reasoning

The High Court had acquitted Ifraim on this basis, finding that the complainant's judgment may have been clouded by alcohol and that mere presence in the complainant's company did not establish participation in the robbery. The Court of Appeal endorsed this reasoning. It distinguished Nahashon's case, where the recovery of the stolen phone from behind his house at his own pointing out and his false account grounded a safe conviction.

p. 4
03

Alternative charge of handling stolen goods not addressed

Holding

The failure of the courts below to make a finding on the alternative handling charge did not avail the appellant, since his conviction on the principal charge of robbery with violence was held safe.

Reasoning

Counsel for the appellant argued that the High Court erred in not determining whether the appellant was a thief or a handler under the alternative charge contrary to section 322(2) of the Penal Code. The Court of Appeal did not find this fatal because the concurrent factual findings against Nahashon supported the robbery conviction itself; the alternative charge had been noted as never referred to in the trial or superior court, but its omission did not undermine the safety of the robbery conviction.

p. 2

Legal principles established

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  • On a second appeal the Court of Appeal will not interfere with concurrent findings of fact by the two courts below unless an error of law is discerned; the appellant must show the courts below erred in law.
  • Suspicion, however strong, does not amount to evidence on which a conviction can rest.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction of the appellant for robbery with violence and the death sentence imposed by the courts below remain in force

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nyeri
H.C. CR. Appeal No. 453 of 2002 (with consolidated Nos. 452 and 412 of 2002)
Jurisdiction invoked
Second appeal to the Court of Appeal under the framework for appeals from the High Court in criminal matters (Constitution of Kenya, appeals as of right in cases involving the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code; the judgment itself does not cite the specific Article)

Relief refused

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Quashing of the appellant's conviction and setting aside of the death sentence

The trial court and the superior court made concurrent findings of fact that the appellant was not truthful and was one of the attackers, and no error of law was discerned in either judgment

p. 4

Claim that the appellant should have benefited from the same doubt given to the co-accused whose appeals were allowed

The superior court had found the evidence against Nahashon safe, unlike the evidence against Ifraim and Godfrey

p. 4

Costs

No order as to costs is recorded 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.

For these reasons we hereby dismiss the appeal.
p. 4Disposition - appeal dismissed
There were concurrent findings of fact by the trial court and the superior court, which we agree with, to the effect that Nahashon was not telling the truth.
p. 4Concurrent findings of fact bind a second appellate court
It is true that the complainant had reason to be suspicious of the 1st appellant however suspicion no matter how strong is not evidence.
p. 4Suspicion is not evidence
The benefit of this doubt ought to have gone to the 1st appellant.
p. 4Benefit of doubt to the accused
The Senior Resident Magistrate had the advantage of seeing the demeanor of the witnesses. We have not discerned any error of law in his judgment or that of the superior court.
p. 4Limits of second appeal - error of law required

Issues in the judgment

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minor

The petition of appeal is described as containing four grounds but actually lists seven numbered grounds, indicating a clerical inconsistency in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nahashon Karuri Karue v Republic [2006] KECA 82 (KLR)", Case Analysis (2006). Criminal Appeal 40 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/82/eng@2006-10-27

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