Simon Kihara Wainaina v Republic [2007] KECA 190 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a second criminal appeal only questions points of law, and upheld this attempted robbery conviction and death sentence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the scope of a second appeal - whether the Court may examine the sufficiency of the evidence supporting the conviction.
- 2.Whether the failure to take the appellant's plea when he first appeared in court rendered the trial a nullity.
- 3.Whether the charge was incurably defective in that its particulars did not clearly state that the panga and the home-made gun were dangerous weapons.
- 4.Whether the evidence on record sustained the conviction for attempted robbery, including whether the appellant's acts went beyond mere preparation.
Key legal issues
#Scope of a second appeal to the Court of Appeal
A second appeal is concerned only with points of law; where some evidence supports a conviction, the Court will not examine the sufficiency of that evidence.
The Court restates the classic limitation on second appeals: only points of law fall for determination, and once some evidence supports a conviction the sufficiency of that evidence is outside its remit, deferring to the concurrent findings of the trial court and the first appellate court. Applying that standard, the torchlight identification, the uninterrupted pursuit, the apprehension at the culvert and the recovery of the home-made pistol constituted some evidence sustaining the conviction.
Whether failure to take a plea at first appearance nullified the trial
No. The omission was curable under section 382 of the Criminal Procedure Code because it occasioned the appellant no prejudice.
Mr Simiyu argued that because no plea was taken when the appellant first appeared, the trial was a nullity. The Court examined the record and found the plea was in fact taken before the trial commenced. Treating the omission as procedural, it invoked the saving provision of the Criminal Procedure Code, holding that since no prejudice was occasioned to the appellant the trial could not be nullified.
Whether the charge was incurably defective for failing to plead the panga and home-made gun as dangerous weapons
The submission was rejected; the charge sheet was not defective.
The Court declined to strike down the charge. It distinguished the two implements: although a panga per se may not be a dangerous or offensive weapon, a gun is a firearm whose purpose at that hour of the night could not have been innocent or peaceful. Both weapons were found with the appellant, who gave no reasonable explanation for possessing them at that hour, so the charge stood.
Whether the appellant's conduct amounted to attempted robbery beyond mere preparation
Yes. The acts were immediately connected with the attempt to rob and went far beyond mere preparation.
The Court held the appellant's conduct was immediately connected with the attempt to rob: he had begun executing his intention by an overt act, the assault on the complainant. His arrest red-handed near the complainant's compound, the fight that injured the complainant's finger, his possession of the weapons, and his failure to explain them at that ungodly hour all took the case far beyond mere preparation, sustaining the conviction.
Legal principles established
#- A second appeal to the Court of Appeal is confined to points of law; once there is some evidence to support a conviction, the Court will not examine the sufficiency of that evidence.
- An omission to take an accused person's plea at his first appearance is curable under section 382 of the Criminal Procedure Code where it occasions no prejudice.
- A gun, being a firearm, is capable of constituting a dangerous weapon for purposes of a robbery charge even where a panga per se may not be one.
- Acts immediately connected with an attempt to rob - such as an overt assault on the intended victim - go beyond mere preparation and sustain a conviction for attempted robbery.
Court orders
#- 1.The conviction for attempted robbery was upheld ('We accordingly uphold the conviction').
- 2.The appeal against both the conviction and the sentence was dismissed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C. CR.A. No. 53 of 2001
- Jurisdiction invoked
- No jurisdictional provision is expressly invoked in the judgment; the Court describes the matter simply as 'This is his second and final appeal' from the High Court of Kenya at Nakuru, arising from a conviction by the Senior Principal Magistrate at Nyahururu.
Relief refused
#Declaration that the trial was a nullity for failure to take a plea before the trial began
The record showed the plea was taken before the trial commenced, and the omission did not occasion the appellant any prejudice, so it was curable under section 382 of the Criminal Procedure Code.
Quashing of the conviction on the ground that the charge was incurably defective
The Court distinguished the weapons: a panga per se may not be dangerous, but a gun is a firearm whose purpose at that hour could not be innocent; both weapons were found with the appellant, who gave no reasonable explanation for possessing them.
Setting aside the conviction and sentence as unsupported by the evidence
On a second appeal the Court is confined to points of law and will not examine the sufficiency of evidence where some evidence supports the conviction; the Court found the evidence did sustain the conviction.
Costs
No order as to costs was made; the judgment is silent on costs (criminal second appeal).
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.
On a second appeal this Court is concerned with points of law. Once it is established that there was some evidence to support a conviction, this Court will not on a second appeal examine the sufficiency of that evidence.
We think that the omission is curable under section 382 of the Criminal Procedure Code as it did not occasion the appellant any prejudice.
While a panga per se may not be a dangerous or offensive weapon, the same cannot be said of a gun which is a firearm, whose main purpose at that hour of the night could not be said to have been innocent or peaceful.
The said acts went far beyond mere preparation since the evidence shows that the appellant had began to put his intention to rob the appellant into execution by an overt act, namely, the assault upon the complainant.
In our view the evidence on record did sustain the conviction. We accordingly uphold the conviction.
For these reasons we dismiss the appeal against both the conviction and sentence.
Issues in the judgment
#Internal temporal inconsistency: the incident is said to have occurred at night but is timed at about 10.00am.
Evident drafting slip in the attempt holding: the appellant's intention is described as an intention to rob 'the appellant' (himself) rather than the complainant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Kihara Wainaina v Republic [2007] KECA 190 (KLR)", Case Analysis (2007). Criminal Appeal 61 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/190/eng@2007-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.