[1995] KECA 52 (KLR)
The Court of Appeal held that it had no jurisdiction to interfere with findings of fact or the severity of sentence in a second appeal under section 361(1) of the Criminal Procedure Code. The court found that the discrepancies in the prosecution evidence were minor and did not affect the credibility of the key...
Source-derived case information.
- Citation
- [1995] KECA 52 (KLR)
- Parties
- Appellant: Gabriel Kariamburi Muraya; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 28 of 1994
- Procedural Posture
- Criminal Appeal / Second Appeal; Judgment of the Court of Appeal
- Outcome
- Appeal dismissed.
- Judges
- JM Gachuhi, AB Shah
- Legal Topics
- Robbery, Appeals on Conviction, Appellate Jurisdiction, Sentencing, Evidence Discrepancies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Kariamburi Muraya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Judgment of the Court of Appeal
Legal Issues
- 1 Whether the Court of Appeal can interfere with findings of fact made by the trial and first appellate courts in a criminal appeal.
- 2 Whether discrepancies in the prosecution evidence were material enough to affect the conviction.
- 3 Whether the severity of the sentence could be considered by the Court of Appeal.
Ratio Decidendi
The Court of Appeal held that it had no jurisdiction to interfere with findings of fact or the severity of sentence in a second appeal under section 361(1) of the Criminal Procedure Code. The court found that the discrepancies in the prosecution evidence were minor and did not affect the credibility of the key witnesses. Both the trial and first appellate courts had properly considered the evidence and found the appellant guilty. Consequently, there was no basis for the Court of Appeal to interfere with the conviction or sentence, and the appeal was dismissed as lacking merit.
Court Disposition
Appeal dismissed.
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
CRIMINAL APPEAL 28 OF 1994
GABRIEL KARIAMBURI MURAYA……………........................................………………….APPELLANT
AND
REPUBLIC………………………….................................………………………………….RESPONDENT
(Appeal from the Conviction and Sentence of High Court of Kenya at Nairobi (Mr.
Justice Porter J., Mbaluto J.) dated 1st October, 1990)
IN
H.C.CR. A. NO. 170 OF 1988
*************************
JUDGMENT OF THE COURT
This is a second appeal against the conviction of the appellant. The appellant was convicted on 29th day of January, 1988 contrary to section 296(1) of the Penal Code of robbery and sentenced to 10 years of imprisonment with 10 strokes and 5 years police supervision.
Section 361(1) of the Criminal Procedure Code makes it quite clear that this court shall not hear an appeal under that section on a matter of fact, and also that severity of sentence is a matter of fact. This court cannot take a different view as the two courts below have gone into the issues of fact properly.
Mr. Wandugi for the appellant argued issues of fact decided upon by both courts below and finally relied basically upon what he called major discrepancies of contradictions in evidence of prosecution evidence.
The Appeal judges in the superior court (on first appeal) properly considered the issue of discrepancies when thy said:
"The Learned Trial Magistrate properly considered all this evidence, although she did not notice the discrepancies to which our attention has been drawn. Those discrepancies are undoubtedly there, but the whole of the evidence supports the two duty watchmen to such an extent that we are satisfied that their credit is not affected thereby:"
We find no discrepancy which goes to suggest that we have a right to inquire into the facts. There are facts which justify conviction and we need not go into the same.
Mr. Wandugi also went into the issue of allegedly excessive sentence. This court cannot inquire into this point, as the issue of severity of sentence is a matter of fact.
In the result this appeal has no merit and we order it to be dismissed.
Dated and delivered at Nairobi this 31st day of March, 1995.
J.M. GACHUHI
………………………
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