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Court of AppealDismissedCriminal Appeal 166 of 2004· [2010] KECA 209 (KLR)

Boniface Kamande & 2 others v Republic

Court of Appeal of Kenya
25 June 2010
ROR.S.C. OmoloPWP.N. WakiDAD.K.S. Aganyanya
2,974 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed three robbery appeals, confirming that constitutional complaints not raised at trial or on first appeal are treated as waived.

What this practically means

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Executive summary

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Three appellants, convicted by the Chief Magistrate's Court at Meru of robbery with violence arising from a November 2001 robbery at the Kirugi home in which Fredrick Kirugi was shot dead, and each sentenced to death on two counts, lost their first appeals before the High Court (Onyancha and Okwengu, JJ) on 22 May 2004, which altered the first count to attempted robbery with violence but confirmed the death sentences. On this second and final appeal before the Court of Appeal at Nyeri (Omolo, Waki and Aganyanya, JJA), counsel for the appellants pressed four grounds: failure of the first appellate court to re-evaluate the identification evidence; detention of about 40 days before charge contrary to section 72(3) of the Constitution; absence of interpretation of the proceedings contrary to section 77(2) of the Constitution and section 198(1) of the Criminal Procedure Code; and failure of the trial Magistrate to evaluate the defence. The Court rejected ground 4, noting the superior court expressly found the Magistrate's judgment wholly inadequate yet fully re-evaluated the evidence itself. On a second appeal, the Court held it must defer to concurrent findings of fact unless there was no evidence at all supporting them. The constitutional and statutory complaints failed on waiver grounds: the issues were never raised before the trial Magistrate or in the first appeal, and applying the principle in JAMES GITHUI WAITHAKA, the appellants were taken to have waived those rights. The Court was satisfied the appellants understood the language of their trial and participated fully. The appeals were wholly dismissed.

Key legal issues

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01

Adequacy of the first appellate court's re-evaluation of evidence

Holding

The first appellate court expressly found the trial Magistrate's judgment wholly inadequate and fully re-evaluated the evidence of the three eyewitnesses before confirming conviction; ground 4 (failure to consider the appellants' defence) also fails

Reasoning

The superior court found the Magistrate had failed to analyze the evidence of the vital prosecution witnesses, but itself reconsidered the evidence and reached its own conclusion that the appellants were properly identified at the scene. The trial Magistrate had accepted the evidence of Anastasia, Samuel and Dominic and rightly rejected the defence of grudge. The first appellate court's conclusions were findings of fact with which the Court of Appeal cannot interfere on second appeal.

p. 5
02

Alleged violation of section 72(3) of the Constitution by detention before charge

Holding

The complaint fails; the right to challenge the delay was waived because it was never raised before the trial Magistrate when the issue could have been referred to the High Court, nor in the first appeal

Reasoning

The charge-sheet did not show the dates of arrest, so the Magistrate could not have known of the delay; no one raised the issue until the appellants gave their final evidence. Counsel appearing earlier in the trial and counsel for the first appellant in the High Court also failed to raise it. Applying the JAMES GITHUI WAITHAKA principle, the appellants waived their right.

p. 5
03

Compliance with section 77(2) of the Constitution and section 198(1) of the CPC on interpretation of proceedings

Holding

The complaint is rejected; the record and conduct of the trial show the appellants understood and fully participated in the trial

Reasoning

The record does not show the language of communication, but advocates appeared at various stages and none complained that an appellant did not understand the language. Each appellant filed written submissions in flowing English, cited authorities, cross-examined witnesses and gave sworn evidence. The Court is satisfied the appellants understood the language of the court.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal is bound by concurrent findings of fact of the two courts below and will interfere only where there is no evidence to support the findings or the evidence is such that no reasonable tribunal could base a decision on it
  • Where an accused's advocate fails to raise the issue of unconstitutionality in the superior court on first appeal, the appellant is taken to have waived the right to raise it on second appeal

Court orders

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  1. 1.The appeals be and are hereby dismissed
  2. 2.A copy of this judgment shall be sent directly to the trial Magistrate so as to avoid unnecessary complaints being raised against his judgments
On appeal from
High Court of Kenya at Meru
H.C. Cr. A. Nos. 225, 230 & 231 of 2002
Jurisdiction invoked
Second and final appeal to the Court of Appeal under the Criminal Procedure Code (Criminal Appeal 166 of 2004; no specific constitutional article is stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Boniface Kamande & 2 others v Republic", Case Analysis (2010). Criminal Appeal 166 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/209/eng@2010-06-25

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