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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 364 of 2007· [2013] KECA 34 (KLR)

William Ng’ang’a Gitau v Republic

Court of Appeal
7 June 2013
2,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Court of Appeal at Nairobi (Mwera, Mwilu and Gatembu Kairu, JJ.A.) dismissed a second appeal by William Ng'ang'a Gitau against the decision of the High Court (Ojwang, J) of 30 May 2007, which had upheld his conviction and 15-year sentence for the defilement of a 15-year-old girl, an offence under section 145(1) of the Penal Code, for which he was convicted by the Chief Magistrate's Court at Thika on 6 April 2005. The appellant attacked the conviction on the basis that the evidence was inconclusive, that the complainant's evidence was unprocedurally recorded without a voire dire, that the burden of proof was shifted to him, that his alibi defence was ignored, and that the charge was defective. The Court reiterated the settled principle, drawn from Njoroge v Republic, David Njoroge Macharia v Republic and Karile Kimaniki v R, that a second appeal is confined to matters of law and that the Court is bound by concurrent findings of fact of the two lower courts unless those findings are based on no evidence, a misapprehension of the evidence, or wrong principles. It found the concurrent factual findings sound, held that the trial magistrate had satisfied himself as required under the proviso to section 124 of the Evidence Act that the complainant was telling the truth, and found the reasons for rejecting the defence evident from the lower courts' judgments. On sentence, the Court held that under section 361(1)(a) of the Criminal Procedure Code it has no jurisdiction to re-examine a lawful sentence alleged to be harsh and excessive, absent illegality. The appeal was dismissed in its entirety.

Key legal issues

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01

Scope of a second appeal

Holding

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

Reasoning

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.

p. 3
02

Sufficiency of the inquiry into the child complainant's understanding of the oath

Holding

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

Reasoning

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.

p. 4
03

Jurisdiction over sentence on second appeal

Holding

The Court has no power to interfere with a lawful sentence on the ground of harshness or excessiveness; only illegality would justify intervention

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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

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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, "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.