[2018] KESC 79 (KLR)

Ndayara v Republic (Criminal Appeal 11 of 2016) [2018] KESC 79 (KLR) (21 December 2018) (Ruling)

Neutral citation: [2018] KESC 79 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Criminal Appeal 11 of 2016

DK Maraga, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ

December 21, 2018

Between

Elvis Opee Ndayara

Appellant

and

Republic

Respondent

Ruling

A. Introduction 1. The Appellant was convicted and sentenced to death in the Chief Magistrate’s Court at Nairobi R v Ahmed Salah & 2 Others, Chief Magistrate’s Court, Nairobi Criminal Case No. 1429 of 2006. His appeals to both the High Court and Court of Appeal were unsuccessful. He is now before this Court challenging the decision of the Appellate Court dismissing his appeal against both conviction and sentence. He has styled his Petition “a criminal appeal”.

2. On 14th June 2016, the Appellant made an application for extension of time to file his appeal. Both parties consented to the application and on 3rd May 2018, the consent was formally adopted as an order of the Court by Ojwang, SCJ.

B. The Petition 3. The Petition dated 11th July 2016 is anchored on Article 163 (4) (a) of the Constitution as well as Section 15 (2) of the Supreme Court Act. The Appellant has outlined eight grounds of appeal which are reproduced verbatim:1. That the learned judges of appeal erred in law by misapplying and misinterpreting Article 25 (c) as read with Article 47 of the Constitution when they infringed upon my right to fair trial by failing to identify any error of law that justified appellate intervention as provided for under Section 3A (1) of the Appellate Jurisdiction Act and Section 361 of the Criminal Procedure Code (CPC).2. That the learned judges of appeal erred in law by misapplying and misinterpreting Articles 25 (c) and 50 (2) (b) of the Constitution when they infringed upon my rights to fair trial by affirming a conviction based on an incurably defective charge contrary to Sections 214 (1) and 137 (c) (i) (iv) of the CPC, respectively, occasioning a miscarriage of justice.3. That the learned Judges of Appeal erred in law by misapplying and misinterpreting Articles 25 (c) and 27 (1) of the constitution when they infringed upon my right to a fair trial and equal benefit of the law by affirming a conviction based on a misapprehension of evidence by the trial court occasioning a miscarriage of justice.4. That, the learned Judges of Appeal erred in law by misapplying and misinterpreting Article 25 (c) as read along with Section 151 of the CPC by affirming a conviction based on the unsworn evidence of two prosecution witnesses i.e. PW1 and PW2 rendering the conviction unconstitutional.5. That the Judges of Appeal erred in law by misapplying and misinterpreting Article 25 (c) of the Constitution when they infringed upon my rights to fair trial by affirming a conviction based on wrongly applied legal principles relating to circumstantial evidence.6. That the learned Judges of Appeal erred in law by misapplying and misinterpreting Article 25 (c) as read along with Section 111 of the Evidence Act, Cap 80, when they infringed upon my rights to fair trial by applying wrong principles of the burden of proof.7. That the learned Judges of Appeal erred in law by misapplying and misinterpreting Article 25 (c) as read along with Article 50 (4) of the Constitution when they infringed upon my right to fair trial by affirming the conviction based on evidence of identification which was procured via a procedure not provided for in law occasioning a miscarriage of justice.8. That the learned Judges of Appeal erred in law by misapplying and misinterpreting Article 25 (c) of the Constitution when they infringed upon my right to fair trial by affirming the conviction based on a documentary evidence (MF1-2) which was incompatible with the evidence of PW1, PW2 and the information on the charge sheet regarding the alleged stolen monies hence rendering the verdict unreasonable.

4. He then prays that:a.The appeal be allowed, the conviction be quashed, the sentence be set aside and that he be set at liberty in the interest of justice or;b.In the alternative, the matter be remanded back to the trial Court for the errors apparent on the face of the record to be corrected if in the opinion of the Court the verdict is in the evidence.

C. Background 5. In R v Ahmed Salah & 2 Others, Chief Magistrate’s Court, Nairobi Criminal Case No. 1429 of 2006, the Appellant was charged together with two others with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. On 19th May 2008, the Senior Principal Magistrate (Mrs. Murage) found all of them guilty as charged and sentenced them to death.

6. Aggrieved, they all appealed the Chief Magistrate’s Court’s decision in Ahmed Salah & 2 Others v R, High Court Criminal Appeal No. 180 of 2008 at the High Court in Nairobi. On 28th February 2012, Ochieng J and Achode J, found the Appellant’s appeal unmeritorious, upheld both the conviction and sentence and dismissed the appeal.

7. Still aggrieved, the Appellant sought redress from the Court of Appeal in Elvis Opee Ndayara & another v R, Criminal Appeal No 125 of 2013. In its decision dated 23rd January 2015, the Court of Appeal summarised the Appellant’s grievances as: the Court failing to note that there was a variance between the charge and evidence adduced; the Court relying on circumstantial evidence upon which to base his conviction; the Court relying on unreliable and contradictory evidence; and the Court failing to consider the accused person’s respective defences.

8. The State Counsel Mr. Njagi Nderitu appearing for the Attorney General did not oppose the Appeal. He noted in that regard that there were major discrepancies in the evidence adduced which rendered the conviction unsafe. The State Counsel also stated that the prosecution witnesses were neither sworn nor affirmed and so the evidence tendered could not be authenticated. The Appellate Court on its part found that it was not bound by the views of counsel in determining appeals citing the decision in Norman Ambich Miero & Another v Republic, Criminal Appeal No. 279 of 2005 [2012] eKLR and thus proceeded to determine the Appeal on its merits.

9. The Appellate Court in that context determined that the High Court had properly dealt with the allegation that the charge was defective when it stated that there was no discrepancy since the value of the currency stolen (Kshs.58 million) was consistent. The Court was also of the view that the discrepancies in the charge sheet were minor and did not cause any prejudice to the Appellant and his co-accused as the evidence against them remained cogent and clear.

10. The Appellate Judges were of the further view that the High Court came to the right conclusion in dismissing the Appeal before it and that the Appellant was rightly convicted and sentenced. Consequently, they dismissed the Appeal and confirmed the death sentence thus triggering the instant appeal.

D. Submissions i. Appellant 11. The Appellant filed his submissions on 20th September 2016. It is his case that the charge as framed was an illegal charge as it was not in compliance with the mandatory provisions of the Criminal Procedure Code (CPC) and this prejudiced his case necessitating this Court’s intervention. He buttresses this assertion by relying on the decision in Nelson Kitese Maweu & 2 Others v R [2008] eKLR.

12. The Appellant also urges that he was not given a fair hearing in all the three Courts below contrary to Article 50 (1) (2) (b) of the Constitution as the charge that he faced was defective and fatally so.

13. He has also contended that his conviction was based on unsworn evidence contrary to Section 151 of the CPC as well as Sections 17 and 18 of the Oaths and Statutory Declarations Act. He further contends that his conviction was therefore unconstitutional and, in this regard, relies on the decisions in Francis Erupe v Republic [2007] eKLR; Tabitha Njeri & Another v R [2008] eKLR; Stephen Lokoton Lobokuon v Republic [2007] eKLR and Joseph Nganga Njenga & 6 Others v R [2008] eKLR.

14. The Appellant furthermore submits that this Court should exclude the entire identification evidence of PW1 as it is contrary to Article 50 (4) of the Constitution. He relies on the decision in Manson v Braithwaite, 432 U.S. 98 (1977) to support this contention. It is thus urged that since the identification evidence was incapable of supporting a conviction, the same should be overturned.

15. The Appellant finally submits that the learned Appellate Judges erred by misapplying and misinterpreting Section 111 of the Evidence Act by not considering that the prosecution had not proved its case beyond reasonable doubt.

ii. Respondent 16. The Respondent filed written submissions on 19th October 2016. It is his case that the Appellant has not raised matters involving the application or interpretation of the Constitution and therefore there is no automatic right of appeal to this Court.

17. He further submits that, in any event, the Courts below properly directed their minds on: variations of evidence between the charge sheet and the evidence of both PW1 and PW2; identification; shifting of burden of proof under Section 111 of the Evidence Act as read with Section 119 of the same Act and also considered the Appellant’s defense.

18. The Respondent further contends that the Appellant is raising the issue of unsworn evidence in this Court for the first time and as such, it is urged that the Appellant is guilty of laxity or inordinate delay. In any event, he contends that the trial Court complied with the relevant provisions of the Constitution, the Evidence Act and the CPC in taking evidence and therefore the conviction and sentence were proper under the Law. That therefore the Appeal is without merit and ought to be dismissed.

E. Determination 19. Having read the Petition before us, the submissions by parties and having orally heard the appellant and Mr. Omirera for the Respondent, we have no doubt in our minds that whereas the Appellant has clothed his Petition with the constitutional garb and invoked Articles 25, 27 and 47 of the Constitution, the Appeal is no more than a further Appeal from the Court of Appeal on matters of fact. Indeed the Appellant, while re-litigating matters already dismissed by the two appellate Courts, has also introduced new matters before us such as the alleged infringement of his Article 25 rights by the Court of Appeal.

20. In that regard, Article 163(4)(a) which grants any party access to this Court as a matter of right has been interpreted to mean that mere pleading of that right cannot clothe this Court with jurisdiction to deal with every matter placed before it under that provision. That is why in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another SC Petition No. 3 of 2012; (2012) eKLR, a two-Judge-Bench of this Court (Tunoi and Wanjala SCJJ) observed that:“Article 163 (4) (a) of the Constitution must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court …Towards this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.”

21. We reiterate that holding and without saying much more, the Petition before us does not raise any question requiring this Court to interpret or apply the Constitution in any way to address the Appellant’s concerns that his conviction and sentence for the reasons reproduced above, ought to be entertained by this Court. The Appeal is therefore one for striking out for want of jurisdiction.

F. Disposition 22. For the reasons given above, our final orders are that:a.The Appeal herein is struck out.b.Each party shall bear its own cost.

DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF DECEMBER 2018. .........................D. K. MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT..........................M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT..........................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT..........................S. C. WANJALAJUSTICE OF THE SUPREME COURT..........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalRegistrar, Supreme Court of Kenya