Njagi v Republic (Criminal Appeal 135 of 2018) [2025] KECA 362 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 50-year defilement sentence, ruling that complaints about witness statements and free lawyers cannot be raised for the first time on 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 appellant's constitutional rights were violated by alleged non-supply of witness statements
- 2.Whether the appellant was entitled to legal representation at State expense
- 3.Whether the evidence before the first appellate court was sufficient to uphold the conviction
- 4.Whether the prosecution failed to call crucial and vital witnesses
- 5.Whether the first appellate court erred in rejecting the appellant's grudge defence
Key legal issues
#Scope of second appeal under section 361(1)(a) Criminal Procedure Code
The second appellate court deals with matters of law only and must resist revisiting facts found by the trial court and first appellate court.
The Court invoked section 361(1)(a) and the Stephen M'Irungi authority, emphasizing that findings of fact by the lower courts bind it unless on the evidence no reasonable tribunal could have reached that conclusion. It reviewed the record only to confirm both lower courts discharged their mandates.
Alleged non-supply of witness statements as a constitutional violation
The complaint failed because the appellant never raised it before the trial court or first appellate court; it was too late to raise it on second appeal.
Relying on Ogunda v Republic, the Court reiterated that the State must supply the charge sheet, witness statements and documents under Article 50(2)(c) and (j), but the obligation is substantive, not a technical trap. The accused has a minimal duty to alert the court to non-supply, which triggers the court's duty. The record showed no such complaint.
Right to legal representation at State expense
Legal representation at State expense is not automatic; the appellant neither applied for it nor raised the issue below, and Article 50(2) safeguards do not apply wholesale to appeals.
Following Mohamed Abdullahi v Republic and Isaiah Maroo v Republic, the Court held the right must be applied for at trial so the court can assess prejudice. Once convicted after a fair trial, the presumption of innocence falls away and only Article 50(2)(q) applies on appeal. Thomas Alugho Ndegwa confirms representation must be applied for in writing and remains discretionary.
Sufficiency of evidence and the grudge defence
The evidence was overwhelming and proved defilement to the required standard; the grudge defence was an afterthought never put to PW1 or PW2 in cross-examination.
PW1's detailed, consistent testimony was corroborated by medical evidence of anal penetration, and section 124 of the Evidence Act permitted conviction on the victim's credible evidence without corroboration. The grudge claim surfaced only in the unsworn defence and was rejected by both lower courts.
Failure to call crucial and vital witnesses
The complaint failed because the appellant did not identify the witnesses said to be missing, and the prosecution called all witnesses necessary to found a conviction.
Applying Bukenya v Uganda, the Director has a discretion on material witnesses but must call all witnesses necessary to establish the truth; a court may draw an adverse inference only where barely adequate evidence is called and uncalled witnesses were available. Here the prosecution's evidence was sufficient.
Legal principles established
#- A second appeal is confined to matters of law only; the second appellate court must accept findings of fact of the lower courts and not interfere unless no reasonable tribunal could have reached that conclusion.
- The State's obligation to supply witness statements is a substantive right, not a technical booby trap; an accused has a minimal duty to raise non-supply before or during trial and cannot strategically raise it for the first time on appeal.
- Legal representation at State expense is not automatic; an accused who needs it must apply to the trial court, and the Article 50(2) fair trial safeguards do not apply wholesale to appeals.
- Under section 124 of the Evidence Act, a trial court may convict in sexual offences on the uncorroborated evidence of the victim if the court believes that evidence.
- The prosecution has a discretion on which material witnesses to call, subject to the Bukenya qualifications, but is not required to call a superfluity of witnesses.
Court orders
#- 1.Appeal dismissed in its entirety; conviction and sentence of 50 years imprisonment upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Embu
- Jurisdiction invoked
- Section 361(1)(a) Criminal Procedure Code - second appeal confined to matters of law only
Relief refused
#Quashing of conviction and setting aside of sentence
All grounds of appeal failed; the evidence proved defilement to the required standard
Costs
No costs order 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.
Being a second appeal our mandate is circumscribed by section 361 (1)(a) Criminal Procedure Code to deal with matters of law only if we find that there are any raised in the appeal.
An accused person cannot fold his hands, string the court along only for him to strategically raise as a point on appeal that he was not supplied with witness statements.
We also find that he never raised the issue before the trial court for the consideration by the trial court to give the court an opportunity to consider whether substantial prejudice would have been occasioned if he proceeded in absence of counsel.
Section 124 Evidence Act allows a trial court to convict an accused person in sexual ofiences without corroboration as long as the court believes the evidence of the victim.
All the grounds of appeal fail and are rejected. The appeal has no merit and we dismiss it in its entirety.
Issues in the judgment
#Judgment does not bear a case number, neutral citation or formal title page; case details are drawn from the opening paragraph.
Recurring OCR/typographical errors in the text, e.g. 'ofience' for 'offence' and 'insuficient' for 'insufficient'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi v Republic (Criminal Appeal 135 of 2018) [2025] KECA 362 (KLR)", Case Analysis (2025). Criminal Appeal (not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/362/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.