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Court of AppealDismissedCriminal Appeal No. 57 of 2017

Jermain John Grant v Republic [2018] KECA 401 (KLR)

Court of Appeal of Kenya
7 June 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
6,041 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a British man's conviction and nine-year sentence for fraudulently trying to obtain a Kenyan birth certificate.

What this practically means

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Executive summary

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The appellant, a British national, was convicted by the High Court at Mombasa (Muya, J.) on nine counts relating to the attempted fraudulent procurement of a Kenyan birth certificate using forged documents, including making false statements for the register of births, procuring execution of a document by false pretences and uttering false documents under the Penal Code. The High Court had reversed the acquittal by the trial magistrate (A. Ndungu, RM), who had found no case to answer, and sentenced the appellant to one year imprisonment on each count, the terms to run consecutively, an effective nine-year term. On appeal, the appellant contended that the evidence was purely circumstantial, that identification was flawed, that no common purpose with his Swahili-speaking accomplice Mustapha was proved, and that the sentences should have run concurrently. The Court of Appeal (Visram, Karanja and Koome JJ.A) framed four issues: identification, the law on joint offenders, corroboration of accomplice evidence, and whether the sentences should be concurrent or consecutive. The Court held that identification findings by the first appellate Judge were sound; that the concurrent findings of the two courts below that PW8 and PW9 were credible accomplices whose evidence was corroborated by independent witnesses could not be disturbed on second appeal; that the appellant was a principal offender under section 20(1) of the Penal Code, Mustapha being merely a facilitator he procured; and that consecutive sentences were justified because obtaining the birth certificate was a process involving distinct incidents on different dates with different persons. The appeal was dismissed in its entirety and the conviction and sentence were affirmed.

Questions the Court framed

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

  1. 1.Whether the first appellate Judge misapprehended the evidence and the law with regard to identification of the appellant
  2. 2.Whether the learned first appellate Judge misapprehended the law on joint offenders
  3. 3.Whether there was corroboration of what was found to be accomplice evidence
  4. 4.Whether the sentences should have been ordered to run concurrently or consecutively

Key legal issues

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01

Identification of the appellant

Holding

The findings of the first appellate Judge that the appellant was properly identified by PW1, PW8, PW9 and PW12 were sound and not disturbed; ten minutes in daytime is sufficient to identify a person.

Reasoning

The Court noted the issue of identification was not raised before the trial court, so no specific findings were made there. The first appellate Judge found the appellant properly identified by several witnesses who saw him, some for several minutes in daylight. The Court saw no reason to upset those findings on second appeal.

p. 5
02

Accomplice evidence and corroboration

Holding

The concurrent findings of the two courts below that PW8 and PW9 were credible accomplices whose evidence was corroborated by independent witnesses could not be faulted and were held with deference.

Reasoning

Applying the guidelines in Michael Muriithi Kinyua v Republic on accomplice evidence, the Court noted both courts below had found the accomplices truthful and credible and their evidence corroborated by independent witnesses (PW1, PW2, PW3, PW10). Despite differing verdicts, these were concurrent findings of fact binding on a second appeal.

p. 5
03

Joint offenders / principal offenders under section 20(1) of the Penal Code

Holding

The learned Judge correctly interpreted section 20(1) of the Penal Code; the entire transaction was for the appellant's benefit and Mustapha was merely a facilitator he procured.

Reasoning

The appellant, a British national who could not speak Kiswahili or local vernacular languages, procured Mustapha, who had local connections, to carry out the transactions for his benefit. The Court found no fault in the first appellate Judge's findings and no basis for upsetting them.

p. 5
04

Concurrent versus consecutive sentences

Holding

Consecutive sentences of one year on each of the nine counts were justified because the process of obtaining the birth certificate involved separate distinct incidents on different dates with different persons.

Reasoning

The Court agreed with counsel that obtaining a birth certificate is a process, not a singular transaction, but held that this process involved distinct incidents before separate officials on separate dates. Consecutive sentences were therefore justified and no interference was warranted.

p. 6

Legal principles established

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  • On a second appeal the Court will not interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, are based on a misapprehension of the evidence, or the courts below demonstrably acted on wrong principles.
  • A person who procures the services of another to commit an offence, because he cannot himself carry out the acts required (here, for lack of language), is a principal offender under section 20(1) of the Penal Code; the facilitator, had he been arrested, could have faced the same charges.
  • Obtaining a birth certificate by fraud is a process, and where the process involved separate distinct incidents on different dates with different persons, consecutive sentences are justified.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction on all nine counts and the consecutive sentences of one year imprisonment on each count (nine years total) upheld

The bench

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

AV
majority

Wrote the judgment

WK
majority

Wrote the judgment

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
H.C.CR.C No. 15 of 2015
Jurisdiction invoked
First appellate jurisdiction over a High Court decision in a criminal appeal, the High Court having exercised its powers under section 348A of the Criminal Procedure Code

Relief refused

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Quashing of the conviction on all nine counts

The Court found the identification, the accomplice evidence and corroboration, and the application of section 20(1) of the Penal Code on principal offenders to be sound; the appeal lacked merit

p. 6

Setting aside the sentence or ordering the sentences to run concurrently

Obtaining a birth certificate is a process involving separate distinct incidents on different dates with different persons, justifying consecutive sentences

p. 6

Costs

No costs order 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.

In all we find this appeal lacking merit and we dismiss it accordingly.
p. 6Disposition - dismissal of appeal
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 4Scope of second appeal
this Court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings
p. 4Second appeal - concurrent findings of fact
The consecutive sentences were therefore justified, and we find no need to interfere with the same.
p. 6Sentence - consecutive terms upheld
There is no doubt the entire transaction was being done for the benefit of the appellant. He could not do it on his own as he could neither speak the local vernacular languages nor Kiswahili. Mustapha was just a facilitator.
p. 5Principal offender - section 20(1) Penal Code

Issues in the judgment

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minor

The judgment refers to the same authority under two different spellings, 'Karingo -vs- R, (1982) KLR 213' and 'Kaingo vs Republic, (supra)', creating uncertainty whether these are one case or two.

minor

The judgment records that the learned Judge was satisfied the appellant was properly identified by different sets of witnesses in different passages, listing PW1, PW8 and PW9 in one place and PW1, PW2 and PW9 plus PW12 in another.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jermain John Grant v Republic [2018] KECA 401 (KLR)", Case Analysis (2018). Criminal Appeal No. 57 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/401/eng@2018-06-07

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