[1995] KECA 51 (KLR)
The Court of Appeal held that it could only interfere with the conviction on a point of law, not on findings of fact, unless such findings were unsupported by evidence. The Court found that the concurrent findings of fact by the trial and first appellate courts, specifically the positive identification of the...
Source-derived case information.
- Citation
- [1995] KECA 51 (KLR)
- Parties
- Appellant: Francis Kuria Muiyuro; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 43 of 1994
- Procedural Posture
- Criminal Appeal / Second Appeal
- Outcome
- appeal dismissed
- Legal Topics
- Robbery, Identification Evidence, Appeals on Points of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Kuria Muiyuro
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal
Legal Issues
- 1 Whether the appellant raised any point of law to warrant interference with the conviction on second appeal.
- 2 Whether the concurrent findings of fact by the lower courts were supported by evidence.
Ratio Decidendi
The Court of Appeal held that it could only interfere with the conviction on a point of law, not on findings of fact, unless such findings were unsupported by evidence. The Court found that the concurrent findings of fact by the trial and first appellate courts, specifically the positive identification of the appellant as a member of the gang involved in the robbery, were sustainable on the evidence. As the appellant failed to raise any point of law in his memoranda of appeal, there was no basis for the Court to interfere with the conviction. The appeal was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAKURU
CRIMINAL APPEAL 43 OF 1994
FRANCIS KURIA MUIYURO……………..........………..APPELLANT
AND
REPUBLIC……...........................…….………………RESPONDENT
(Appeal from a conviction and sentence of the High Court of Kenya at Nakuru (Lady Justice Nambuye) dated 2nd July, 1993
IN
H.C.CR.C. NO. 422 OF 1992)
************************
JUDGMENT OF THE COURT
The appellant Francis Kuria Muiyuro was convicted by the Nakuru Resident Magistrate of robbery contrary to section 296(1) of the Penal Code and sentenced to 7 years imprisonment plus 12 stokes of the cane together with the mandatory 5 years police supervision period. His appeal to the High Court on conviction was dismissed but the sentence was reduced to 5 years imprisonment and 4 strokes of the cane. Against that dismissal the appellant has appealed to this Court.
This being a second appeal, this Court is precluded from questioning the findings of fact of the trial court provided that there was evidence to support those findings, though it may think it possible, or even probable, that it would not have itself come to the same conclusion. It can only entertain a second appeal on a point of law. See R v Hassan Bin Said [1942]) E.A.C.A.62.
The concurrent findings of fact of the trial and the first appellate court that the appellant was a member of the gang that broke into the complainant's house during the material night and assaulted him and his family, is sustainable on the evidence. There was, in our view, positive identification of the appellant.
In this second appeal, the appellant has not raised any points of law in his original and supplementary memorandum of appeal to persuade us to interfere with the conviction. Accordingly, his appeal fails. We dismiss it.
Dated and delivered at Nakuru this 20th day of February, 1995.
A.M. AKIWUMI
………………….
JUDGE OF APPEAL
P.K. TUNOI
……………………….
JUDGE OF APPEAL
A.B. SHAH
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR