Cheruiyot v Republic (Criminal Appeal 111 of 2019) [2023] KECA 1481 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 30-year rape sentence, holding that issues never raised at trial or on first appeal cannot win a second appeal.
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 two courts below infringed/contravened the appellant's rights to a fair trial pursuant to article 50(1)(2) and 27(1)(2) of the Constitution by failing to supply witness statements
- 2.Whether the two courts below erred in failing to find that the charge sheet was defective
- 3.Whether the identification of the appellant was proper
- 4.Whether the two courts below erred in their analysis and re-evaluation of the evidence on record thus shifting the burden of proof to the appellant
Key legal issues
#Scope of a second appeal under section 361 of the Criminal Procedure Code
A second appeal is confined to matters of law; the Court will not interfere with concurrent findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles.
Relying on section 361(1)(a) of the Criminal Procedure Code and prior decisions, the Court reiterated its primary role as a second appellate court to steer clear of issues of fact and concern itself only with issues of law, citing David Njoroge Macharia v Republic and Chemagong v Republic.
Whether the appellant's right to a fair trial was infringed by non-supply of witness statements
No infringement was established: the appellant never raised non-supply of statements during the trial or in the first appeal, and indicated readiness to proceed at the hearing.
The record showed the court suo moto directed supply of witness statements; at the hearing neither party raised non-supply; the appellant cross-examined witnesses and sought adjournments. The issue was also raised for the first time on second appeal, having never been raised before the High Court.
Whether the charge sheet was defective
The charge sheet was not defective: the particulars disclosed the offences, accorded with the evidence, and no prejudice occasioning a miscarriage of justice was shown.
Applying the tests in Peter Ngure Mwangi v Republic and Peter Sabem Leitu v R, the Court found the particulars clearly disclosed the three counts, were read to the appellant at plea, and conformed to the prosecution evidence. The claim of a second accused was unsupported by evidence and possibly a typographical error into which the Court would not speculate.
Whether identification of the appellant was proper
The appellant was positively identified by recognition; the complainant knew him well as a neighbour, the lighting was conducive, and his identity was never in issue at trial.
PW1 knew the appellant as a neighbour who had once ploughed her land; there was light from a torch and fire; the evidence was consistent and unshaken in cross-examination; and the appellant spent considerable time with her, making recognition more reliable than identification of a stranger, per Kenga Chea Thoya v Republic and Anjononi v Republic.
Whether the burden of proof was shifted to the appellant
The burden of proof was not shifted; the complainant's evidence was clear, unchallenged and corroborated by the P3 form, and all ingredients of the offences were proved beyond reasonable doubt.
PW1 gave clear, detailed and unchallenged evidence corroborated by the P3 form showing genital and other injuries. The Court noted the appellant sought forgiveness from PW1 before trial, undermining his claim of innocence, and found the concurrent findings of the two courts below safe.
Legal principles established
#- On a second appeal, 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 such findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles.
- Recognition of an assailant known to the witness is more satisfactory, more assuring and more reliable than identification of a stranger.
Court orders
#- 1.The appellant's appeal is dismissed in its entirety
- 2.The appellant's conviction for rape and assault causing actual bodily harm is upheld
- 3.The sentences of 30 years' imprisonment (rape) and 2 years' imprisonment (assault causing actual bodily harm), running concurrently, are not disturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Eldoret)
- Not stated in judgment
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, confining the Court to matters of law
Relief refused
#Acquittal on the ground of an allegedly unfair trial (non-supply of witness statements)
The record showed the appellant did not raise the issue during the trial or in the first appeal; the contention was without basis
Quashing of conviction on the ground of a defective charge sheet
The particulars disclosed the offences, accorded with the evidence, and no prejudice or miscarriage of justice was shown
Disturbance of conviction on the ground of improper identification
The complainant positively identified the appellant by recognition as a well-known neighbour
Interference with the sentences of 30 years and 2 years' imprisonment
The circumstances of the offences were aggravated
Costs
No order as to costs was made 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 the foregoing is that the appellant’s appeal is without merit and the same is hereby dismissed in its entirety.
We therefore find and hold that the appellant’s conviction for the offence of rape and assault causing actual bodily harm was safe and sound, which conviction we hereby uphold and consequently, dismiss the appellant’s appeal on conviction.
By dint of section 361 (1) (a) of the Criminal Procedure Code, we are mandated to consider only matters of law.
we consider the circumstances under which these offences were committed to be aggravated and we are not inclined to disturb the sentences.
Issues in the judgment
#The judgment text contains typographical errors, e.g. 'ofiences' for 'offences' and 'Yongo v R [198] eKLR', which likely should read '[1983] eKLR'; quote-matching should tolerate these.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Republic (Criminal Appeal 111 of 2019) [2023] KECA 1481 (KLR)", Case Analysis (2023). Criminal Appeal (Eldoret) – notice of appeal dated December 5, 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1481/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.