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Court of AppealDismissedCriminal Appeal No. 60 of 2010

Simon Morara Onchonke v Republic [2011] KECA 209 (KLR)

Court of Appeal of Kenya
10 June 2011
1,196 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will not reconsider facts on a second criminal appeal, only questions of law.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Principal Magistrate at Nakuru of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. The prosecution's evidence, given by three witnesses, was that on 24th June 2003 at Naivasha, the appellant was among four men who trailed the complainant, a driver, and his conductor, and that during a scuffle the complainant was robbed of his jacket containing documents and Kshs.10,000; the appellant was chased, caught by members of the public and handed over. The appellant, in an unsworn statement, said he had intervened in an altercation involving a lady and was mistaken for a thief and beaten. The first appeal to the High Court (Emukule & Ouko, JJ.) was dismissed on 5th March 2010. On second appeal, counsel argued that the superior court failed to re-evaluate the evidence and to warn itself on the dangers of identification. The Court of Appeal (Bosire, Githinji & Onyango Otieno, JJ.A.) restated that a second appeal lies only on a matter of law under Section 361(1) of the Criminal Procedure Code, and that concurrent findings of fact by the two lower courts, grounded in witness credibility, cannot be disturbed. Since the trial court had specifically found, on credibility, that the incident was a robbery, and the appellant admitted being at the scene, the identification ground did not arise. The appeal was dismissed on 10th June 2011.

Questions the Court framed

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

  1. 1.Whether a second appeal founded on the adequacy of the superior court's re-evaluation of evidence and on the dangers of identification raises a matter of law within Section 361(1) of the Criminal Procedure Code
  2. 2.Whether the Court of Appeal may interfere with the concurrent findings of fact of the two courts below

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 is confined to matters of law; the Court must accept findings of fact of the lower courts and not treat factual or mixed findings as holdings of law

Reasoning

The Court restated the settled principle that where the right of appeal is confined to points of law, it must resist the temptation to re-appraise evidence. Findings of fact by the trial court and the first appellate court, particularly on witness credibility, bind a second appellate court unless no reasonable tribunal could have reached them. The complaint about identification was in substance a complaint about the evaluation of evidence and credibility, hence factual.

p. 2
02

Concurrent findings of fact on whether the incident was a robbery or a confrontation

Holding

The trial magistrate's finding, based on the credibility of the complainant's witnesses, that the incident was a robbery, having been upheld by the superior court after re-evaluation, constituted concurrent findings of fact with which the Court of Appeal would not interfere

Reasoning

Two competing versions existed: the prosecution's account of a robbery by four men, and the appellant's account of a confrontation arising from an altercation over a woman. The trial magistrate made a specific credibility-based finding of robbery; the superior court re-evaluated the evidence and reached the same conclusion. With concurrent findings of fact, no legal ground existed for interference on second appeal.

p. 2
03

Complaint on the dangers of identification

Holding

The identification complaint did not arise because the appellant admitted being at the scene and having a confrontation, so the issue was factual in nature

Reasoning

The appellant, in his unsworn statement, admitted being chased, arrested and returned to the scene, and admitted a confrontation with a person. On his own version, identification or recognition was not in issue; the real question was whether the incident amounted to robbery, which was purely a matter of fact. An appeal resting on such a ground was incompetent on second appeal.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal lies only on a matter of law, and the Court is bound by concurrent findings of fact of the lower courts unless no reasonable tribunal could have reached them
  • A first appellate court should not interfere with findings of fact based on the credibility of witnesses unless no reasonable tribunal could have made such findings

Court orders

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  1. 1.The appeal is dismissed

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 Nakuru
H.C.CR.A. No. 561 of 2003
Jurisdiction invoked
Second appeal under Section 361(1) of the Criminal Procedure Code, confined to matters of law

Relief refused

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Quashing of conviction and setting aside of the death sentence for robbery with violence

The appeal was based on matters of fact, outside the scope of a second appeal, and there were concurrent findings of fact by the two courts below

p. 3

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.

It is trite law that a second appeal such as this one, can only be based on a matter of law and not on a matter fact. (Section 361 (1) of the Criminal Procedure Code).
p. 2Scope of second appeal
Where the right of appeal is confined to a point of law the Court has loyalty to accept findings of fact of the lower court(s) and has to resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law and should not interfere with such findings unless it is satisfied that no reasonable tribunal could have, on the evidence, reached such a conclusion
p. 2Concurrent findings of fact
Consequently, the appeal is dismissed.
p. 3Final orders - disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Morara Onchonke v Republic [2011] KECA 209 (KLR)", Case Analysis (2011). Criminal Appeal No. 60 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/209/eng@2011-06-10

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