Charles Eshitemi Bulimo v Republic [2014] KECA 6 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery appeal, confirming that second appeals only address legal errors, circumstantial evidence can convict, and Clinical Officers can testify.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the evidence of PW2 to PW4 was circumstantial evidence requiring corroboration to be admissible in law
- 2.Whether blood-stain evidence without medical examination could found a conviction
- 3.Whether the first appellate court failed to subject the entire evidence to a fresh and independent scrutiny
- 4.Whether the charge was proved beyond reasonable doubt
- 5.Whether a Clinical Officer is qualified to give medical evidence in criminal proceedings
Key legal issues
#Scope of jurisdiction on a second appeal
The Court's jurisdiction is limited to issues of law; concurrent findings of fact by the two courts below are not disturbed absent misdirection, absence of evidence, or perversity.
The Court invoked section 361(1)(a) of the Criminal Procedure Code and reaffirmed the long-standing line of authority including Njoroge v Republic and Thiongo v Republic. It held it would examine the facts only for purposes of establishing whether points of law arise, and declined to re-evaluate the concurrent findings of the trial magistrate and the High Court.
Admissibility and sufficiency of circumstantial and blood-trail evidence
The evidence of the trail of blood was relevant as forming part of the same transaction under section 6 of the Evidence Act, and the whole body of circumstantial evidence proved the charge beyond reasonable doubt.
The complainant was attacked and stabbed one of the robbers; blood trails led from the scene to both the complainant's and the appellant's homes; the appellant was found the same morning with fresh wounds on the hand and eye consistent with the complainant's account, seeking treatment in another district; blood-stained panga and clothes were recovered from a pit latrine at his home. The Court held the first appellate court was entitled to rely on these connected facts.
Ingredients of robbery with violence
Section 296(2) Penal Code is satisfied by proof of any one of three exclusive ingredients: arming with a dangerous weapon, acting in company with others, or using personal violence; here more than one was proved.
The Court set out the three alternative limbs of the offence and found that Wilfred was attacked by two people armed with pangas who used actual violence, so the prosecution, required to prove only one ingredient, proved more than one. This also defeated the submission that medical evidence was indispensable to the charge.
Competence of a Clinical Officer to give medical evidence
A Clinical Officer is legally entitled to testify on medical matters in criminal trials; the challenge to his competence was without substance.
Relying on section 2 and section 7(4) of the Clinical Officers (Training, Registration and Licensing) Act (Cap 260), which define a clinical officer and entitle registered officers to render medical or dental services in Kenya and to practise for a fee, the Court held there is no law barring a Clinical Officer from testifying, distinguishing nothing and following its prior decisions in Raphael Kavoi Kiilu and Mark Wanjala Wanyama.
Legal principles established
#- A second appeal under section 361(1)(a) Criminal Procedure Code is confined to issues of law; the Court will not interfere with concurrent findings of fact unless there is a misdirection on the facts, findings based on no evidence, or perverse findings.
- Facts so connected with a fact in issue as to form part of the same transaction are relevant and admissible under section 6 of the Evidence Act.
- The offence of robbery with violence under section 296(2) of the Penal Code is established where the offender is armed with a dangerous weapon, or is in company with others, or uses personal violence; proof of any one ingredient suffices, and the ingredients are exclusive, not inclusive.
- There is no law in Kenya barring a Clinical Officer from testifying in court on medical matters; a registered clinical officer is entitled to render medical services and to give evidence.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Conviction and sentence of death as imposed by the trial court and upheld by the High Court stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega HCCRA No. 225 of 2010
- Jurisdiction invoked
- Section 361(1)(a) Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Quashing of conviction and setting aside of the death sentence
The appeal had no merit; the circumstantial evidence formed part of the same transaction and the prosecution proved the offence beyond reasonable doubt
Costs
No order as to costs recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of our findings is that the appeal has no merit and we dismiss it in its entirety.
the provisions of Section 361 (1) (a) Criminal Procedure Code limit our jurisdiction on such an appeal to a consideration of only issues of law but not matters of fact which the two courts below have made findings upon unless it can be shown that there has been a misdirection in the treatment of facts or the findings are based on no evidence or that they are pervese
Blood stains led to the appellants house and when he was found the same morning in a different district he had injuries consistent with injuries described by the complainant and was in the process of attempting to get treatment for the injuries.
The prosecution established more than one of the ingredients forming the offence when they were only required to prove one ingredient.
there is no law in Kenya that bars a Clinical Officer from testifying in court as the witness in the case before the trial magistrate did
Issues in the judgment
#Internal contradiction in the date of the High Court judgment: the heading states it was dated 8th November 2010 while the body records that the judgment was delivered on 8th November 2012
Discrepancy in the citation of Njoroge v Republic: the judgment prints [19821 KLR 388, apparently a typographical rendering of [1982]
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Eshitemi Bulimo v Republic [2014] KECA 6 (KLR)", Case Analysis (2014). Criminal Appeal No. 35 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/6/eng@2014-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.