Julius Waweru Pleuster v Republic [2009] KECA 173 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a second appeal can only challenge errors of law, not facts, and upheld the conviction.
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 first appellate court erred in law in upholding the conviction notwithstanding that a material witness (Peris) was not called to testify
- 2.Whether the first appellate court erred in failing to treat the prosecution account as incredible given that the ordeal allegedly took place in daylight in a public setting
- 3.Whether the appellant's defence was adequately weighed against the prosecution evidence
Key legal issues
#Scope of a second appeal
Only issues of law fall for consideration on second appeal; grounds attacking findings of fact are not cognisable.
The court noted that four of the appellant's seven grounds attacked findings of fact and were therefore not open on second appeal. Only the grounds asserting errors of law - failure to call a material witness, the credibility of the daylight abduction account, and the weighing of the defence - could be considered.
Duty to call material witnesses
The prosecution must call witnesses necessary to establish the truth but need not call a plurality; failure to call a material witness may found an adverse inference, but only if the witness's evidence would have affected the outcome.
The woman Peris, to whom the complainant first reported, was not called. Her evidence would at best have shown the complaint of sodomy, which would have strengthened rather than undermined the prosecution case. The evidence against the appellant was overwhelming, so no adverse inference could assist him.
Consideration of an accused's defence
A trial court must consider, not merely record, the accused's defence; here the defence was untenable and self-incriminating and the first appellate court properly considered it.
The trial magistrate merely set out the defence without evidencing any consideration of it, but the first appellate court considered and rejected it as untenable and self-incriminating, a view the Court of Appeal shared. The appellate structure thereby cured the trial court's lapse.
Legal principles established
#- On a second appeal the Court of Appeal concerns itself only with matters of law; findings of fact by the courts below are not open to challenge.
- The prosecution is obliged to call only such witnesses as are necessary to establish the truth; it is not required to call a plurality of witnesses to prove a fact, but failure to call a material witness may attract an adverse inference.
- Where an uncalled witness's evidence would not have affected the outcome, no adverse inference will disturb the conviction.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence meted out by the courts below are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C. CR. A. NO. 77 OF 2004
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal on matters of law only from a first appeal decision of the High Court)
Relief refused
#Quashing of conviction and sentence under section 162(a) of the Penal Code
The appeal raised no sustainable point of law; the evidence against the appellant was overwhelming and the sentence lawful
Costs
No order as to costs is recorded in the judgment (criminal appeal; the appeal was simply dismissed)
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.
This being a second appeal only issues of law fall for consideration.
the prosecution is obligated to call such witnesses as are necessary to establish the truth. It is, however, not obliged to call a plurality of witness to prove a fact.
If, however, the prosecution fails to call a material witness an adverse inference may be raised that had the witness been called he would have testified against the prosecution case.
The appellant was properly convicted and the sentence which was meted out against him is a lawful sentence. That being our view of the matter the appellant's appeal must be and it is hereby dismissed.
Issues in the judgment
#The judgment describes the complainant as a woman in the charge context but the offence involves anal intercourse with a male complainant; the judgment also refers to the complainant as 'DM' without indicating gender issue internally - noted only as an internal ambiguity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Waweru Pleuster v Republic [2009] KECA 173 (KLR)", Case Analysis (2009). Criminal Appeal 177 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/173/eng@2009-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.