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Court of AppealDismissedCriminal Appeal 120 of 2008

Patrick Macharia v Republic [2010] KECA 53 (KLR)

Court of Appeal of Kenya
19 November 2010
SBS. E. O. BosireEGE. M. GithinjiJNJ. G. Nyamu
1,283 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a second criminal appeal can only challenge legal errors, not re-argue facts already settled by two lower courts.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Bosire, Githinji and Nyamu, JJA) dismissed a second appeal against conviction for robbery with violence contrary to Section 296(2) of the Penal Code and the death sentence imposed by the Chief Magistrate, Meru, and affirmed on first appeal by the High Court at Meru (Lenaola and Ouko, JJ.). The complainant was attacked at night outside her house in Meru Town by three robbers who stole money and a mobile phone; she held onto the appellant while screaming until neighbours arrived and arrested him. The appellant's sole argued ground, in a supplementary memorandum, was that the courts below failed to accord him the benefit of doubt cast by his defence, counsel invoking the Canadian authority R v Lifchus on the meaning of proof beyond reasonable doubt. The Court, applying Section 361(1) of the Criminal Procedure Code, reiterated that a second appeal lies on matters of law only and that it must accept the concurrent findings of fact of the two courts below, including findings on the credibility of witnesses, unless no reasonable tribunal could have reached them (M'Riungu v Republic; Republic vs. Oyier). It held that all grounds of appeal were matters of fact; the courts below had made a firm finding that the prosecution case was proved beyond reasonable doubt and entertained no doubt as to guilt. The appeal was therefore incompetent and was dismissed in its entirety.

Questions the Court framed

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

  1. 1.Whether the appellant was denied the benefit of doubt reasonably cast by his defence, the prosecution case not having been proved beyond reasonable doubt
  2. 2.Whether the grounds of appeal, including the supplementary ground, raise matters of law as required on a second appeal under Section 361(1) of the Criminal Procedure Code

Key legal issues

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01

Scope of a second appeal under Section 361(1) of the Criminal Procedure Code

Holding

A second appeal lies only on matters of law; the Court must accept the findings of fact of the lower courts and may not interfere with findings based on the credibility of witnesses unless no reasonable tribunal could have made them.

Reasoning

The Court invoked Section 361(1) CPR and its prior decision in M'Riungu v Republic, holding that where appeal rights are confined to questions of law the appellate court must resist treating findings of fact as holdings of law. The concurrent findings of the two courts below on credibility of PW1 and the rejection of the appellant's defence were findings of fact. Citing Republic vs. Oyier, it held such findings are unassailable absent proof that no reasonable tribunal could have made them.

p. 2
02

Whether the grounds of appeal, including the benefit-of-doubt ground, raised matters of law

Holding

All grounds, including the supplementary benefit-of-doubt ground, were matters of fact; since the courts below found the case proved beyond reasonable doubt with no doubt entertained, the appeal was incompetent and was dismissed.

Reasoning

The Court examined the memorandum of appeal and the supplementary ground relied on by counsel and found them all founded on factual matters. The two courts below had rejected the appellant's evidence and made a firm finding that the prosecution case was proved beyond reasonable doubt. Because no doubt about guilt was entertained below, the contention that the appellant was denied the benefit of doubt failed, rendering the appeal incompetent in its entirety.

p. 2

Legal principles established

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  • On a second appeal confined to matters of law, the Court of Appeal will not interfere with concurrent findings of fact of the lower courts unless it is apparent that no reasonable tribunal could have reached those conclusions.
  • A second appeal grounded wholly on matters of fact, contrary to Section 361(1) of the Criminal Procedure Code, is incompetent.

Court orders

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  1. 1.The appeal is dismissed in its entirety

The bench

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

SB
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Meru
H.C.CR.A. NO. 144 OF 2005
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Acquittal on the ground that the appellant was denied the benefit of doubt

The two courts below made concurrent findings that the prosecution case was proved beyond reasonable doubt and entertained no doubt about guilt; the ground was one of fact, not law, and the appeal was incompetent

p. 2

Costs

No costs order 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.

where a right of appeal is confined to questions of law an appellate court has royalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law
p. 2Scope of second appeal - matters of law only
This appeal being solely based on matters of fact is undoubtedly incompetent. The result is that the appeal is dismissed in its entirety. It is so ordered.
p. 2Final orders - dismissal of appeal
The two courts below did not entertain any doubt about the guilt of the appellant and hence it cannot be justifiably said that the appellant was denied the benefit of doubt.
p. 2Benefit of doubt

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, "Patrick Macharia v Republic [2010] KECA 53 (KLR)", Case Analysis (2010). Criminal Appeal 120 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/53/eng@2010-11-19

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