William Ng’ang’a Gitau v Republic
The bottom line
#Kenya's Court of Appeal confirmed that second appeals can only challenge legal errors, not re-argue facts or lawful sentences.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal
A second appeal is confined to matters of law; the Court will not disturb concurrent findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles
The Court invoked its settled jurisdiction under section 361 of the Criminal Procedure Code, as stated in Njoroge v Republic and David Njoroge Macharia v Republic, and in Karile Kimaniki v R, that only matters of law fall for consideration and homage is paid to concurrent findings of fact absent perversity or absence of evidence.
Sufficiency of the inquiry into the child complainant's understanding of the oath
The trial magistrate complied with the proviso to section 124 of the Evidence Act by satisfying himself that the complainant was telling the truth; no voire dire complaint was sustained
The appellant argued that PW1's evidence was unprocedurally recorded because no voire dire was conducted. The Court found from the record that the magistrate, as required under the proviso of section 124 of the Evidence Act, satisfied himself that the complainant was telling the truth before relying on her evidence.
Jurisdiction over sentence on second appeal
The Court has no power to interfere with a lawful sentence on the ground of harshness or excessiveness; only illegality would justify intervention
Section 361(1)(a) of the Criminal Procedure Code declares sentence a matter of fact, removing from the Court on second appeal any jurisdiction to re-examine a lawful sentence on the complaint that it is harsh and excessive. There was no suggestion the sentence was illegal.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to points of law and is bound by concurrent findings of fact of the lower courts unless those findings are not based on evidence
- On a second appeal under section 361 of the Criminal Procedure Code, the Court has no jurisdiction to re-examine a lawful sentence on the ground that it is harsh and excessive
Court orders
#- 1.The appeal fails in its entirety and is dismissed for lacking in merit
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 198 of 2005
- Jurisdiction invoked
- Second appeal to the Court of Appeal under Section 361 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Ng’ang’a Gitau v Republic", Case Analysis (2013). Criminal Appeal No. 364 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/34/eng@2013-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.