Civil Procedure - limitation of actions - statute barring an action to enforce a judgment where it is brought after the expiry of 12 years after the delivery of the judgment - meaning of "action" under the Limitation of Actions Act section 4 - meaning of "suit" - whether a notice of motion for eviction could be termed as an action under the Act. LAND LAW - CONTROLLED TRANSACTION - SALE OF AGRICULTURAL LAND - NECESSITY OF OBTAINING THE CONSENT OF THE LAND CONTROL BOARD TO SUCH TRANSACTION.

Crime - murder - three accused persons convicted and sentenced to death - whether offence of murder can be proved by circumstantial evidence - where a case rests exclusively on circumstantial evidence - test which a court should apply in such a case - where evidence is not reliable, doubt to be resolved in favour of the accused

Criminal Practice and Procedure – appeal – first appeal – duty of first appellate court to evaluate the evidence and draw its own conclusions. Evidence – evaluation of evidence – duty of first appellate court to evaluate evidence and draw its own conclusi

Richard Chemnjor Ngeiywa v Republic

Court of Appeal, at Eldoret October 1, 2004

Omolo, O’Kubasu & Githinji JJ A

Criminal Appeal No 125 of 2001

(Appeal from a judgment of the High Court of Kenya at Kitale (Nambuye

&Visram, JJ) dated 29.05.01 in HCCRA No 64 of 1998)

Criminal Practice and Procedure – appeal – second appeal – duty of a court on a second appeal where there are concurrent findings of fact by two lower courts – second appellate court finding no reasons to interfere with the findings.

The appellant was convicted in a Senior Resident Magistrate’s Court for the offence of robbery with violence and sentenced to death. His first appeal to the High Court was dismissed and he filed a second appeal.

Among his grounds of appeal the appellant stated that his conviction was not proper on the evidence and that the two lower courts had erred in rejecting his defence of alibi.

Held:

1. The defence of alibi was first raised in the appellant’s defence and not when he had been called up to answer to the charge. In that case, it was sufficient, as the trial magistrate had done, to weigh the alibi against the weight of evidence.

2. Even though the High Court did not specifically mention the defence of alibi, it concurred with the finding of the trial court including the basis for rejecting the appellant’s defence of alibi and made its own independent finding that the appellant was positively identified as having been among the robbers. By accepting the evidence of identification, the High Court in effect rejected the defence of alibi.

3. The trial magistrate had properly considered the evidence and the first Appellate Court had discharged its duty by reconsidering the evidence, re-evaluating it and it had arrived at the same findings as the trial court.

4. This was a case where there were concurrent findings of fact by two lower courts and there was overwhelming evidence to support the decision of the two courts. There were no grounds on which this Court could interfere with the findings.

Appeal dismissed.

Cases

Wang’ombe v Republic [1980] KLR 149

Statutes

Penal Code (cap 63) section 296(2)

Advocates

Mr Ruto for the Appellant

Manslaughter – Penal Code (Cap 63) section 205 – accused person in drunken brawl leading to death – accused held in custody for over 4 years - accused convicted and sentenced to 6 year’s imprisonment - judge stating that he had taken into account the per