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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal (as per Memorandum of Appeal pursuant to Notice of Appeal dated 14th December 2018)· [2023] KECA 337 (KLR)

Republic v Linah Mulaki Cheywe & 1 other

Court of Appeal of Kenya
24 March 2023
3,112 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 dismissed the State's attempt to overturn an acquittal, confirming prosecution appeals against acquittals must be exceptional.

What this practically means

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Executive summary

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This was the State's second appeal against the acquittal of Samuel Ongeri and Linah Mulaki Cheywe, who had been charged with obtaining Kshs 580,000 by false pretences contrary to section 313 of the Penal Code, on allegations that they pretended to sell land parcel Tulwet/Kesses Block 4 (Lelmokwo) 59 to the complainant, Wellington Musungu. The trial magistrate acquitted them under section 215 of the Criminal Procedure Code, finding the prosecution had not proved its case beyond reasonable doubt because the complainant's evidence was riddled with contradictions on acreage, price, the identity of the seller and the agreement produced. The High Court (S.M. Githinji J) dismissed the State's first appeal on December 5, 2018, affirming the acquittal. Before the Court of Appeal (SichaLe, Achode and Korir JJA, sitting in Nakuru), the State argued that both courts below had failed to properly evaluate the prosecution evidence and sought a retrial. The respondents urged the Court to respect the concurrent findings of fact. The Court held that under section 361(1)(a) of the Criminal Procedure Code a second appeal lies on matters of law only, and that the concurrent findings were founded on evidence and correct principles. It also reiterated, citing Danson Mgunya and Maina v Republic, that the State's post-2014 right of appeal against acquittal must be reserved for exceptional circumstances, and this was not one. On retrial, applying Ahmed Sumar v R, none was warranted since the appellant laid no basis for it. The appeal was dismissed in its entirety. No costs order was recorded.

Key legal issues

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01

Scope of the Court's jurisdiction on a second appeal

Holding

The Court is confined to matters of law by section 361(1)(a) of the Criminal Procedure Code and will not disturb concurrent findings of fact that were based on the evidence and on correct principles.

Reasoning

By dint of section 361(1)(a) of the Criminal Procedure Code, a second appeal concerns only matters of law. The trial magistrate and the High Court judge made concurrent findings that the prosecution case was riddled with material contradictions - on acreage, price per acre, the identity of the seller and the payee. Those findings were supported by the record, were not based on misapprehension of the evidence, and no wrong principles were demonstrated, so the Court could not interfere.

p. 4
02

Exercise of the State's right of appeal against an acquittal

Holding

The right of appeal against acquittal conferred by the amended section 348A must be exercised in exceptional circumstances; this was not such a case.

Reasoning

The Court noted that the Security Laws (Amendment) Act No. 19 of 2014 widened the State's right of appeal against acquittals from matters of law only to matters of fact and law. Associating itself with Republic v Danson Mgunya and Maina & others v Republic, the Court reiterated that appeals against acquittal are inherently uneasy and the right must be exercised sparingly, only where the circumstances loudly cry out for appellate justice.

p. 5
03

When a retrial may be ordered

Holding

A retrial is ordered only where the original trial was illegal or defective, not to enable the prosecution to fill gaps in its evidence; no basis for a retrial was laid here.

Reasoning

Relying on Ahmed Sumar v R and Samuel Wahini Ngugi v R, the Court restated that a retrial follows only where the original trial was illegal or defective and where the interests of justice require it without causing injustice to the accused. Since the acquittal rested on insufficiency of evidence, and the appellant did not even submit on retrial, the ground failed in its entirety.

p. 6

Legal principles established

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  • On a second appeal under section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless they are based on no evidence, on a misapprehension of the evidence, or on wrong principles.
  • A retrial will only be ordered where the original trial was illegal or defective; it will not be ordered where a conviction is set aside because of insufficiency of evidence or to enable the prosecution to fill gaps in its evidence.
  • The State's right of appeal against an acquittal following the Security Laws (Amendment) Act No. 19 of 2014 must be exercised in exceptional circumstances that loudly cry out for appellate justice.

Court orders

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  1. 1.The appellant's appeal is dismissed in its entirety
  2. 2.It is so ordered
On appeal from
High Court of Kenya
Jurisdiction invoked
Second appeal under section 361(1)(a) of the Criminal Procedure Code, confining the Court to matters of law

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, "Republic v Linah Mulaki Cheywe & 1 other", Case Analysis (2023). Criminal Appeal (as per Memorandum of Appeal pursuant to Notice of Appeal dated 14th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/337/eng@2023-03-24

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