CRIMINAL PROCEDURE CODE

361.Second appeals
(1)A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a
decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of
Appeal shall not hear an appeal under this section—
(a)on a matter of fact, and severity of sentence is a matter of fact; or
(b)against sentence, except where a sentence has been enhanced by the High Court, unless
the subordinate court had no power under section 7 to pass that sentence.
(2)On any such appeal, the Court of Appeal may, if it thinks that the judgment of the
subordinate court or of the first appellate court should be set aside or varied on the ground
of a wrong decision on a question of law, make any order which the subordinate court or
the first appellate court could have made, or may remit the case, together with its judgment
or order thereon, to the first appellate court or to the subordinate court for determination,
whether or not by way of rehearing, with such directions as the Court of Appeal may think
necessary.
(3)If it appears to the Court of Appeal that a party to an appeal, though not properly convicted on
some count, has been properly convicted on some other count, the court may, in respect of the
count on which it considers that the appellant has been properly convicted, either affirm the
sentence passed by the subordinate court or by the first appellate court or pass such other
sentence (whether more or less severe) in substitution therefor as it thinks proper.
(4)Where a party to an appeal has been convicted of an offence and the subordinate court or the
first appellate court could lawfully have found him guilty of some other offence, and on the
finding of the subordinate court or of the first appellate court it appears to the Court of Appeal
that the court must have been satisfied of facts which proved him guilty of that other offence, the
Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the conviction
entered by the subordinate court or by the first appellate court a conviction of guilty of that other
offence, and pass such sentence in substitution for the sentence passed by the subordinate court
or by the first appellate court as may be warranted in law for that other offence.
(5)On any appeal brought under this section, the Court of Appeal may, notwithstanding that it
may be of the opinion that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has in fact
occurred
(6)Where an appeal under this section is pending, a judge of the High Court may grant bail to a
convicted person who is a party to the appeal.
(7)For the purposes of this section, an order made by the High Court in the exercise of its
revisionary jurisdiction or a decision of the High Court on a case stated shall be deemed to be a
decision of the High Court in its appellate jurisdiction.
(8)This section shall not apply to—
(a)a decision of the High Court in its appellate Jurisdiction exercised under section 347(1)(b); or
(b)a refusal by the High Court to admit an appeal out of time under section 349, and any such
decision or refusal shall be final.
SUPREME COURT
Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR
[80] From the foregoing review of the comparative judicial experience, we would characterize
the three elements of the phrase “matters of law” as follows:
a. the technical element: involving the interpretation of a constitutional or statutory
provision;
b. the practical element: involving the application of the Constitution and the law to
a set of facts or evidence on record;
c. the evidentiary element: involving the evaluation of the conclusions of a trial Court
on the basis of the evidence on record.
[81] Now with specific reference to Section 85A of the Elections Act, it emerges that the phrase
“matters of law only”, means a question or an issue involving:
a. the interpretation, or construction of a provision of the Constitution, an Act of
Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the
High Court, concerning membership of the National Assembly, the Senate, or the office
of County Governor;
b. the application of a provision of the Constitution, an Act of Parliament, Subsidiary
Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial
Judge in an election petition in the High Court concerning membership of the National
Assembly, the Senate, or the office of County Governor;
c. the conclusions arrived at by the trial Judge in an election petition in the High Court
concerning membership of the National Assembly, the Senate, or the office of County
Governor, where the appellant claims that such conclusions were based on “no evidence”,
or that the conclusions were not supported by the established facts or evidence on record,
or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would
arrive at the same; it is not enough for the appellant to contend that the trial Judge would
probably have arrived at a different conclusion on the basis of the evidence.
[81A] It is for the appellate Court to determine whether the petition and memorandum of appeal
lodged before it by the appellant conform to the foregoing principles, before admitting the same
for hearing and determination.
[82] Flowing from these guiding principles, it follows that a petition which requires the
appellate Court to re-examine the  probative value of the evidence tendered at the trial
Court, or invites the Court to calibrate any such evidence, especially calling into question
the credibility of witnesses, ought not to be admitted. We believe that these principles strike a
balance between the need for an appellate Court to proceed from a position of deference to the
trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest
standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on
the other hand.

COURT OF APPEAL
MGK v Republic [2020] eKLR
[9] This being a second appeal, the Court is restricted under section 362(1)(a) of the Penal Code
to considering matters of law only. The confines of the Court’s jurisdiction was aptly set out by
this Court in Karingo vs. R [1982] KLR 213 that:
“A second appeal must be confined to points of law and this Court will not interfere with
concurrent findings of fact arrived at in the two courts below unless based on no
evidence. The test to be applied on second appeal is whether there was any evidence on
which the trial court could find as it did (Reuben Karari C/O Karanja - vs- R (1956) 17
EACA 146)”
Richard Kaitany Chemagong v Republic [1984] eKLR
A court on appeal will not normally interfere with a finding of fact by the trial court
whether in a civil or criminal case unless it is based on no evidence, or on a
misapprehension of the evidence, or the judge is shown demonstrably to have acted on
wrong principles in reaching the findings he did. In the present case we think the
preponderance of the evidence clearly showed that the appellant suffered from epilepsy and was
prone to fits at frequent intervals. We think that the judge misapprehended the effect of the
evidence on this issue and should have held that the appellant suffered from epilepsy as a
disease.
Samwel Kiberenge v Republic [2013] eKLR
This being a second appeal, this court is restricted to address itself only on matters of law
by dint of the provisions of Section 361 (1) of the Criminal Procedure Code. Section 361
(1) provides:
 “361 (1)      A party to an appeal from a subordinate court may, subject to subsection (8),
appeal against a decision of the High Court in its appellate jurisdiction on a matter of law,
and the Court of Appeal  shall  not  hear  an  appeal  under  this section-
(a)     on a matter of fact, and severity of sentence is a matter of fact.” As this Court has
stated many times before, it will not normally interfere with concurrent findings of fact by
the two courts below unless such findings are based on no evidence, or are based on a
misapprehension of the evidence, or the courts below are shown demonstrably to have
acted on wrong principles
in making the findings.  See  CHEMAGONG V R, [1984] KLR 611 .  In KAINGO V R,
(1982) KLR 213 at p. 219 this Court said:
“A second appeal must be confined to points of law and this Court will not interfere with
concurrent findings of fact arrived at in the two courts below unless based on no evidence.
The test to be applied on second appeal is whether there was any evidence on which the trial
court could find as it did (REUBEN KARARI C/O KARANJA V. R, (1956) 17 EACA 146).”

Korir v Republic (Criminal Appeal 100 of 2019) [2021] KECA 305 (KLR) (17 December
2021) (Judgment)

18.The appeal before us is a second appeal. Our mandate as regards a second appeal is
clear. By dint of Section 361 (1) (a) of the  Criminal Procedure Code we are mandated to
consider only matters of law. In Kados vs. Republic Nyeri Cr. Appeal No. 149 of 2006 (UR)
this Court rendered itself thus on this issue:"…This being a second appeal we are
reminded of our primary role as a second appellate court, namely to steer clear of all issues
of facts and only concern ourselves with issues of law …”

19.In David Njoroge Macharia vs. Republic [2011] eKLR it was stated that under Section 361
of the Criminal Procedure Code:"Only matters of law fall for consideration and the court
will not normally interfere with concurrent findings of fact by the two courts below unless
such findings are based on no evidence, or are based on a misapprehension of the evidence,
or the courts below are shown demonstrably to have acted on wrong principles in making
the findings. (See also Chemagong vs. Republic [1984] KLR 213).”
Paul Lokitari v Republic [2016] eKLR
2. This is his second appeal. Under Section 361(1) of the Criminal Procedure Code, our mandate
on a second appeal is restricted to matters of law. [See  M’Riungu   vs. R [1983]    KLR455].
See also Karingo vs. Republic [1982] KLR 213] where the Court stated:

     “A second appeal must be confined to points of law and this Court will not
interfere with concurrent findings of fact arrived at in the two courts below unless
based on no evidence.  The test to be applied  on second appeal is whether there
was any evidence on which the trial court could find as it did ( Reuben Karari s/o
Karanja vs. Republic (1950) 17 EACA 146)”
….
17. As we have already stated, in a second appeal, we can only interfere with the
concurrent findings of fact by the lower courts if such findings are not based on
evidence, or are based on a misapprehension of the evidence, or the trial court is
shown demonstrably to  have acted on wrong principles in reaching the findings.

David Njoroge Macharia v Republic [2011] eKLR

After his conviction and sentence, the appellant appealed to the superior court (Lesiit and Dulu,
JJ) which also came to the conclusion that his appeal lacked merit, and dismissed the same. The
appellant now comes before this Court on a second and final appeal.
That being so only matters of law fall for consideration –  see section 361 of the Criminal
Procedure Code. As this Court has stated many times before, it will not normally interfere
with concurrent findings of fact by the two courts below unless such findings are based on
no evidence, or are based on a misapprehension of the evidence, or the courts below are
shown demonstrably to have acted on wrong principles in making the findings –
see Chemagong v. R [1984] KLR 611.