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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 17 of 2009

John Irungu Kariuki v Republic [2010] KECA 175 (KLR)

Court of Appeal of Kenya
9 July 2010
1,877 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to overturn a fraud conviction, confirming that second appeals only question legal errors, not how courts assessed the evidence.

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 Makadara on one count of obtaining money by false pretences contrary to section 313 of the Penal Code and on counts of making a document without authority and uttering a false document, receiving concurrent sentences of three and five years. His first appeal to the High Court (Ojwang, J) was dismissed on 9th February 2009. He then lodged a second and final appeal to the Court of Appeal at Nairobi, which by dint of section 361 of the Criminal Procedure Code was limited to matters of law. The appeal was heard on 24th May 2010, the appellant appearing in person and the State by Senior Principal State Counsel Mr. M. O'Mirera. The complainant had been induced by a newspaper advertisement to pay Kshs.400,000 towards the purchase of a plot at Umoja Innercore which the appellant, presenting himself under a false identity card bearing another man's name, had no authority to sell. The Court of Appeal, per the judgment of the court delivered by Omolo, O'Kubasu and Visram, JJA, reaffirmed the settled rule that it will not interfere with concurrent findings of fact unless they rest on no evidence, a misapprehension of the evidence, or no reasonable tribunal could have made them, citing M'Riungu v R [1983] KLR 455. Finding the concurrent findings fully supported by the evidence, the Court dismissed the appeal in its entirety on 9th July 2010. 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 this Court should interfere with the concurrent findings of fact by the two courts below on a second appeal limited to matters of law

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

A second and final appeal to the Court of Appeal is confined to matters of law; the Court will not disturb concurrent findings of fact unless no evidence supported them, they rested on a misapprehension of the evidence, or no reasonable tribunal would have made them.

Reasoning

By dint of section 361 of the Criminal Procedure Code, only matters of law fall for consideration on a second appeal. The grounds of appeal ultimately challenged findings of fact by the two courts below. Invoking the settled rule in M'Riungu v R, the Court held the concurrent findings that the appellant fraudulently obtained Kshs.400,000 by pretending authority to sell a plot were fully supported by the evidence, so there was no basis for interference.

p. 2
02

Sufficiency of the evidence on obtaining money by false pretences, making a document without authority and uttering a false document

Holding

The evidence established that the appellant, posing as Stephen Mungai Kahiga using a forged identity card, falsely represented ownership of a plot and obtained Kshs.400,000 from the complainant, sustaining the convictions under sections 313, 357(a) and 353 of the Penal Code.

Reasoning

The trial magistrate found the appellant affixed his photograph to another person's identity card and transacted under that name, and made no attempt to show any claim to the plot. The High Court described the complainant's loss of Kshs.400,000 to a fraudster who advertised, showed and purported to sell a plot that was not his. The Court of Appeal found no reason to interfere with these concurrent findings.

p. 3

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 such findings were made on no evidence, on a misapprehension of the evidence, or no reasonable tribunal properly directing itself to the evidence would make such findings

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.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Cr. A. No. 397 of 2007
Jurisdiction invoked
Second and final appeal under section 361 of the Criminal Procedure Code, restricted to matters of law

Relief refused

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Allowance of the second appeal and quashing of the convictions and sentences

The concurrent findings of fact by the two courts below were fully supported by the evidence on record

p. 4

Costs

No costs order 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.

This Court has stated on numerous occasions that it will not interfere with concurrent findings of fact by the two courts below unless such findings were made on no evidence at all or on misapprehension of it or no reasonable tribunal properly directing itself to the evidence would make such findings
p. 3Second appeals - non-interference with concurrent findings of fact
We therefore have no reasons to interfere with those concurrent findings of the two courts below. The findings were fully supported by the evidence on record. Accordingly this appeal is dismissed in its entirety.
p. 4Final orders - appeal dismissed

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, "John Irungu Kariuki v Republic [2010] KECA 175 (KLR)", Case Analysis (2010). Criminal Appeal No. 17 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/175/eng@2010-07-09

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