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Court of AppealDismissedCriminal Appeal 298 of 2008

Maina Mbuthia v Republic [2010] KECA 282 (KLR)

Court of Appeal of Kenya
21 May 2010
696 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a second appeal only questions points of law, and a conviction supported by sound identification evidence will stand.

What this practically means

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Executive summary

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The appellant, Maina Mbuthia, was convicted by the Senior Resident Magistrate's Court at Mukurweini of stealing stock contrary to section 278 of the Penal Code and sentenced to ten years' imprisonment. On first appeal, Kasango, J of the High Court at Nyeri dismissed the appeal on 28 October 2008 but substituted a conviction for attempted stealing of stock contrary to section 278 as read with section 389 of the Penal Code, sentencing the appellant to five years' imprisonment. The appellant then lodged this second appeal before the Court of Appeal at Nyeri (Tunoi, Githinji and Onyango Otieno, JJA), acting in person and raising four grounds, only one of which - identification - was a substantial point of law. The evidence was that the complainant's cow was taken during the early hours of 26 January 2007; the appellant was found hiding in coffee bushes on her farm with the cow recovered nearby. The Court reiterated that a second appeal is confined to points of law and that it would not interfere with concurrent findings of fact of the two courts below unless shown to be based on no evidence, applying Kaingo v Republic [1982] KLR 213. It held the identification evidence sound. On the substitution of the charge, the Court observed that the offence had been completed when the appellant was arrested, the cow having been driven from the shed some distance away, so attempt was not strictly made out; however, the substitution caused no miscarriage of justice and in fact benefited the appellant through the reduced sentence. The appeal was accordingly dismissed in its entirety, with the conviction and five-year sentence left standing.

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 properly identified as one of the persons who stole the complainant's cow
  2. 2.Whether this Court, on a second appeal, could interfere with the concurrent findings of fact of the two courts below
  3. 3.Whether the High Court was entitled to substitute a conviction for stealing stock with one for attempted stealing of stock
  4. 4.Whether the substitution occasioned the appellant a miscarriage of justice

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to points of law; the Court will not disturb concurrent findings of fact absent a showing that they were based on no evidence.

Reasoning

The appellant, unrepresented, raised grounds that were largely factual, with identification as the only substantial point of law. The Court reiterated the settled limitation on second appeals, citing Kaingo v Republic, and held that both courts below were entitled to find the identification sound, the appellant having been found hiding in the farm with the stolen cow nearby.

p. 2
02

Substitution of a stealing charge with attempted stealing

Holding

The High Court's substitution of the conviction for stealing stock with attempted stealing of stock was unnecessary because the offence had been completed, but it caused no miscarriage of justice and in fact benefited the appellant.

Reasoning

By the time of arrest the cow had been driven out of the shed and taken some distance into the bushes; the appellant's intention had been manifested by a fulfilled overt act under section 388 of the Penal Code. The completed offence, not an attempt, was made out. Since the appellant benefited from the reduced sentence, the Court declined to intervene on that ground alone.

p. 2
03

Sufficiency of identification evidence

Holding

The evidence identifying the appellant as one of the thieves was sound and the conviction inevitable.

Reasoning

The appellant was apprehended hiding in coffee bushes on the complainant's farm during the early hours of the morning, with the stolen cow recovered nearby bearing a rope tied to its leg. Both the trial court and the first appellate court were satisfied with the identification, and no error of law was shown.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence
  • Where the commission of an offence has been completed, a conviction for the completed offence cannot stand as one for an attempt; the offender's intention must have been fulfilled by an overt act

Court orders

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  1. 1.The appeal was dismissed
  2. 2.The conviction for attempted stealing of stock and the sentence of five (5) years imprisonment imposed by the High Court were left undisturbed

The bench

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

majority
majority
On appeal from
High Court of Kenya at Nyeri
H.C. Cr. App. No. 248 of 2007
Jurisdiction invoked
Second appellate jurisdiction over an appeal from the High Court exercising first appellate jurisdiction in a criminal appeal (Court of Appeal, Criminal Appeal 298 of 2008)

Relief refused

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The appellant's appeal against conviction and sentence

The Court was satisfied that the appellant was convicted on very sound evidence and that the superior court was entitled to uphold the conviction; the substitution of the charge benefited rather than prejudiced him

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.

a second appeal (like the present one) must be confined to points of law and this Court would not interfere with concurrent findings of fact of the two courts below unless they are shown to have been based on no evidence
p. 2Scope of second appeals
the commission of the offence had been completed by the time the appellant was arrested. The cow had been driven out of the shed and taken some distance away into the bushes
p. 2Completed offence versus attempt
In the result, this appeal is rejected and is hereby ordered dismissed
p. 2Final orders / disposition

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, "Maina Mbuthia v Republic [2010] KECA 282 (KLR)", Case Analysis (2010). Criminal Appeal 298 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/282/eng@2010-05-21

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