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Court of AppealDismissedCriminal Appeal No. 66 of 2011

Alex Kibet Murgor v Republic [2013] KECA 162 (KLR)

Court of Appeal of Kenya
16 October 2013
957 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 review only points of law, and unlawful police detention is remedied through a damages claim, not an appeal.

What this practically means

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Executive summary

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The appellant, Alex Kibet Murgor, was convicted by the Senior Resident Magistrate's Court at Kapenguria of defilement contrary to Section 8(3) of the Sexual Offences Act and sentenced to twenty years imprisonment. His first appeal to the High Court at Kitale (Ombija, J) was dismissed, and he brought a second appeal to the Court of Appeal at Eldoret on three grounds: that his constitutional rights were violated by 11 days of pre-charge police detention; that the charge was fabricated to cover the complainant's father's refusal to pay the balance of the purchase price of land the appellant had sold him; and that his identification by recognition was flawed because the complainant initially gave the name of her assailant as 'Osama' and the appellant was never medically examined. The court, per the judgment of Maraga, Ouko and Mohammed, JJ.A, reiterated that under Section 361 of the Criminal Procedure Code a second appeal is confined to points of law, and concurrent findings of fact of the two lower courts will not be disturbed unless shown to be based on no evidence or on a misapprehension of the evidence that no reasonable tribunal would reach, citing Sammy Kanyi Mwangi v Republic and Njoroge v Republic. The court held that unlawful detention gives rise only to a damages claim against the government; that the alleged grudge was neither raised at trial nor in the first appeal and is in any event a matter of fact; and that the complainant's immediate naming of the appellant to her mother, who passed the name to the Assistant Chief, established reliable recognition of a known neighbour. The appeal was dismissed.

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's detention by police for 11 days before arraignment violated his constitutional right to a fair trial and could ground the appeal
  2. 2.Whether the charge was tramped up by the complainant's father to cover a debt owing to the appellant
  3. 3.Whether the identification/recognition of the appellant by the complainant was flawed
  4. 4.Whether the concurrent findings of fact by the two lower courts can be disturbed on second appeal

Key legal issues

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01

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

The Court is confined to points of law and will not interfere with concurrent findings of fact absent proof they were based on no evidence or a misapprehension of the evidence

Reasoning

By dint of Section 361 of the Criminal Procedure Code, a second appeal lies only on matters of law. An appellant seeking to overturn concurrent factual findings of the trial court and the first appellate court must demonstrate that those findings were based on no evidence at all, or on a misapprehension of the evidence which no reasonable tribunal properly directing its mind to the evidence would reach. The court endorsed this approach citing Sammy Kanyi Mwangi v Republic and Njoroge v Republic.

p. 2
02

Effect of prolonged police detention on a conviction

Holding

An 11-day detention before arraignment, if proved, violates constitutional fair-trial rights but does not avail an appellant on appeal against conviction; the remedy is a damages action against the government

Reasoning

The court accepted arguendo that detention beyond the period authorized by law would violate the right to a fair trial. However, following its earlier pronouncements, such unlawful detention gives rise only to a cause of action against the government for general damages. It is therefore not a ground for quashing a conviction on second appeal, and the ground of appeal failed.

p. 2
03

Identification by recognition of a known neighbour

Holding

The complainant's immediate naming of the appellant to her mother, corroborated by the mother passing the name to the Assistant Chief who arrested him, established reliable identification by recognition

Reasoning

The complainant told her mother immediately upon reaching home that Kibet alias Osama had defiled her; the appellant was known by the name Osama; the mother relayed the name to the Assistant Chief who arrested the appellant from a funeral. As a neighbour well known to the complainant, the recognition evidence was sound and the ground of appeal failed.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal deals only with points of law and will not disturb concurrent findings of fact unless they were based on no evidence at all or on a misapprehension of the evidence such that no reasonable tribunal properly directing its mind to it would reach such a conclusion
  • Detention of a suspect for a period longer than that authorised by law does not vitiate a conviction; the remedy is a separate action against the government for general damages
  • A grudge or motive not raised in the trial court or in the first appeal is a matter of fact that cannot be entertained on a second appeal

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction and sentence of twenty years imprisonment for defilement upheld

The bench

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

majority
William Ouko
W. OukoJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Kitale
H.C. CRA No. 43 of 2008
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, limited to points of law

Relief refused

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Allowance of the appeal and setting aside of the conviction and sentence

No merit in any of the three grounds of appeal; concurrent findings of the lower courts were not shown to be based on no evidence or misapprehension of the evidence

p. 2

Relief for the alleged 11-day unlawful detention

Unlawful detention gives rise only to a cause of action against the government for general damages, not a ground of appeal against conviction

p. 2

Costs

No costs order recorded 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.

this Court is supposed to deal with only points of law. Where the two lower courts have made concurrent findings on points of fact, to overrule them, the appellant needs to demonstrate to this Court that those findings were based on no evidence at all or on a misapprehension of the evidence on record which no reasonable tribunal properly directing its mind to it would reach such conclusion
p. 2Scope of second appeal - points of law only
detentions of suspects for periods longer than those authorized by law only gives rise to causes of action against the government for general damages
p. 2Remedy for unlawful police detention
In the upshot we find no merit in this appeal and we accordingly hereby dismiss it.
p. 2Disposition - appeal dismissed

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, "Alex Kibet Murgor v Republic [2013] KECA 162 (KLR)", Case Analysis (2013). Criminal Appeal No. 66 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/162/eng@2013-10-16

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