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Court of AppealDismissedCriminal Appeal No. 190 of 2005

John Wanyonyi Andrea v Republic [2006] KECA 124 (KLR)

Court of Appeal of Kenya
22 September 2006
Philip Kiptoo TunoiP. K. TunoiEOE. O. O'KubasuWDW. S. Deverell
772 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals can only challenge legal errors, not facts, and dismissed a cattle theft conviction appeal.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate's Court at Kitale on four counts of stealing stock contrary to section 278 of the Penal Code and sentenced to seven years' imprisonment on each count, running concurrently. His first appeal to the High Court at Kitale (W. Karanja J) was dismissed on 26 April 2005, and he brought this second and final appeal to the Court of Appeal at Eldoret before Tunoi, O'Kubasu and Devereil JJ.A. The appellant filed written submissions, all of which related to the facts as found at trial. The Court, in a single judgment of the court, reiterated that a second appeal is confined to points of law only and that concurrent findings of fact of the two courts below will not be disturbed unless based on no evidence, applying Karingo v. Republic [1982] KLR 213 and Reuben Karari s/o Karanja v Republic (1950) EACA 146. There were concurrent findings that the four stolen cattle were traceable to the appellant: he was found in actual possession of one cow, he led police to the homesteads of his co-accused where the others were recovered, and four cattle movement permits had been issued in his name. The Court held the convictions were based on very sound evidence and inevitable, affirmed the judgment of the High Court, and dismissed the appeal on 22 September 2006. No separate costs order appears in the judgment.

Questions the Court framed

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

  1. 1.Whether, on a second appeal confined to points of law, the Court should interfere with the concurrent findings of fact of the two courts below
  2. 2.Whether there was any evidence on which the trial court could convict the appellant

Key legal issues

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Scope of a second appeal

Holding

A second appeal is confined to matters of law and the Court will not disturb concurrent findings of fact unless they are based on no evidence.

Reasoning

The Court distinguished between first appeals, where evidence is re-evaluated, and second appeals, which raise only questions of law. Since the appellant's written submissions all related to the facts found in the trial court, they could not succeed. The Court applied the established test from Karingo v. Republic and Reuben Karari s/o Karanja v Republic: whether there was any evidence on which the trial court could have found as it did. Evidence existed here, so no interference was warranted.

p. 2
02

Sufficiency of evidence of stealing stock

Holding

Possession of a stolen cow, leading police to the homes where the remaining stolen cattle were recovered, and cattle movement permits issued in the appellant's name constituted sound evidence of guilt.

Reasoning

There were concurrent findings below that the four complainants' cattle were traceable to the appellant: one cow was recovered from his homestead, he directed police to the homesteads of his co-accused where the other cows were found, and four movement permits were issued in his name. The fact that co-accused were acquitted did not assist him, as the first appellate court found the evidence against him overwhelming and his convictions inevitable.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal must be confined to points of law only, and the Court will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
  • The test on a second appeal is whether there was any evidence on which the trial court could have reached the finding it did.

Court orders

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  1. 1.The appeal fails and is dismissed

The bench

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

Philip Kiptoo Tunoi
majority
EO
majority
WD
majority
On appeal from
High Court of Kenya at Kitale
Kitale HC.CR.A. No. 189 of 2002
Jurisdiction invoked
Second appeal to the Court of Appeal under the constitutional and statutory framework confining second appeals to matters of law

Relief refused

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Conviction and sentence set aside / appeal allowed

Concurrent findings of fact by the two courts below were supported by evidence and the second appeal is confined to points 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.

this being a second appeal, it must be confined to points of law only; and, this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 2Scope of second appeals
The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.
p. 2Test on second appeal
In the result this appeal fails and is hereby dismissed.
p. 2Final orders - dismissal of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "John Wanyonyi Andrea v Republic [2006] KECA 124 (KLR)", Case Analysis (2006). Criminal Appeal No. 190 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/124/eng@2006-09-22

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