Samwel Kiberenge v Republic [2013] eKLR have sought treatment and healed. Mr Mutuku further contended that the appeal does not raise any legal grounds; that the issue of delay in bringing the appellant to court had its remedies under Section 72 (6) of the former Constitution and, therefore, was inconsequential to this appeal. Regarding a grudge between the appellant and the mother of the complainant, Mr Mutuku submitted the same was raised and addressed in the trial court and High Court and the concurrent findings of the two courts was that the grudge was never shown to exist. That is a finding of fact. On the issue of sentence enhancement, he submitted that the learned Judge was correct and within the law, having been guided by the prescribed sentence for the offence in the Sexual Offences Act. In view of the foregoing, he urged the court to find that both courts below evaluated the evidence properly. He therefore, urged us to dismiss the appeal and uphold both the conviction and sentence. We have carefully considered the grounds of appeal, the submissions by the learned counsel for the respondent and the law. 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).” In view of the aforementioned, the issues of law arising for the court's determination are: 1. Whether there was sufficient and sound evidence to establish the charge against the appellant? 2. Whether the appellant’s detention was unlawful and whether the delay was inordinate? 3. Whether the sentence was enhanced lawfully? http://www.kenyalaw.org - Page 4/8