Stanley Nkunja v Republic [2013] eKLR Chemagong vs. Republic (1984) KLR 213 at page 219 this Court held ‘A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of facts 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 17 EACA146)' 10. We have considered the grounds of appeal, submissions by the appellant and the state counsel and the law. The appellant contends that his fundamental rights under Section 72(3) of the former Constitution were violated because he was not arraigned in court within 24 hours of his arrest. From the charge sheet on record it is clear that the appellant was arrested on 12th February, 2008 and was arraigned in court on 15th February, 2005, three days after his arrest. Section 72(3)(b) of the former Constitution stipulates that a person arrested for an offence other than a capital offence, should be arraigned in court within 24 hours of his arrest. Therefore, was the delay of three days in arraigning the appellant a violation of his rights and did the same warrant his acquittal? Section 72(3) (b) of the former Constitution further stipulates if a suspect is not arraigned within the requisite period, the prosecution may be required to explain that the delay was necessary and not unreasonable. In this case this issue is being raised in this Court for the first time. In Peter Kihia Mwaniki -vs- Republic- Criminal Appeal No. 280 of 2005, this Court held, 'Neither the appellant nor the prosecution raised any issue concerning the delay in bringing the appellant to court. Nor was the issue raised before the superior court on first appeal. It was in either of those courts that the issue should have been raised so that an inquiry would be made regarding the issue, when both sides would possibly call evidence on the matter. The 14 days duration under section 72(3)(b) is not absolute. Circumstances may exist which militate against presenting a suspect before court within that period. The framers of the Constitution must have had that in mind when they provided that the duty of explaining the delay lay with the person who alleges there was no delay in bringing the accused to court. By raising the issue at this late stage the appellant has, in a way denied the prosecution the constitutional opportunity to explain that delay.' We find that the issue having being raised at this stage, we are unable to determine if the delay in arraigning the appellant was unreasonable. In any event, this Court has stated more than once that failure to arraign an accused person within the connstitutional time limits, the consequence is not an automatic acquital but an action in civil remedy for damages.See Julius Kamau Mbugu -vs- RepublicCriminal Appeal No. 50 of 2008. Consequently, this ground of appeal must fail. 11. On the issue regarding inconsistencies in the prosecution's evidence outlined by the appellant, namely that V testified that the incident took place on 12th February, 2007 while the charge sheet indicated that the incident took place on 12th February, 2008; V indicated in her testimony that the incident occurred at Particulars withheld) Market while the charge sheet indicated that the incident occurred at [Particulars withheld] Location; and that V testified that she went home and told her mother about the alleged defilement while C testified that she went to the hotel where she saw the appellant coming from the kitchen followed by V who told her what happened, we find that the same are curable under section 382 of the Criminal Procedure Code, which provides; “Subject to the provisions herein-before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of http://www.kenyalaw.org - Page 3/5