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Court of AppealPartially AllowedCriminal Appeal No 74 of 1985

Kariuki v Republic [1985] KECA 104 (KLR)

Court of Appeal of Kenya
6 December 1985
2,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal held that robbery requires actual movement of stolen property, and sloppy police identification parades can unravel entire convictions.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Kneller JA, Platt and Gachuhi Ag JJA) allowed this second appeal in part against convictions on four counts of robbery under section 296(1) of the Penal Code arising from incidents in Kisumu in 1981-1982. On count 4, the court held that no robbery occurred because the essential element of taking was absent: under sections 268(5) and 295 of the Penal Code, nothing was moved or caused to move, as the car stalled and the money was abandoned, so the conviction was reduced to attempted robbery under section 297, carrying seven years' imprisonment. On counts 2 and 3, the court held that identification parades conducted by Inspector Langat, with four accused lined up against only twelve innocent persons instead of the ratio required by the Police Force Orders, invited identification by chance or guesswork, rendering the parades unreliable; the conviction on count 2 was quashed as unreliable and unsupported. However, the parade conducted by Chief Inspector Kamunya at a one-to-seven ratio was within tolerable limits, and, together with a chase and immediate capture of the appellant and favourable daylight identification conditions, supported the convictions on counts 1 and 3, which were dismissed despite the absence of a single-witness warning under Roria v R. The court also criticised the holding of multiple trials within trials. The appellant continues to serve ten years' concurrent imprisonment with fifteen strokes of corporal punishment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the charge on count 4 was made out, given that no theft or taking occurred
  2. 2.Whether the identification parades were conducted in compliance with the Police Force Orders and were reliable
  3. 3.Whether the caution statements of the appellant were improperly admitted following alleged torture and multiple trials within trials
  4. 4.Whether the absence of a warning on the danger of identification by a single identifying witness vitiated the convictions on counts 1 and 3

Key legal issues

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01

Elements of robbery on count 4

Holding

Conviction on count 4 altered to attempted robbery under section 297 of the Penal Code because no theft was completed

Reasoning

The definition of robbery in section 295 commences with stealing, and theft under section 268 requires taking. Section 268(5) deems a person not to take a thing unless he moves it or causes it to move. Neither the car nor the money was moved; the robbers fled empty-handed when the car stalled. The steps towards theft stopped short of taking, so the lesser offence of attempted robbery, punishable with seven years' imprisonment, applied. Under section 179 of the Criminal Procedure Code the court altered the conviction accordingly.

p. 2
02

Reliability of identification parades

Holding

Parades held by Inspector Langat with four accused to twelve others were a material infringement and an unreliable source of identification, undermining identifications on counts 2, 3 and 4; the Kamunya parade at one to seven was at the limit of permissible non-compliance

Reasoning

The Police Force Orders require a margin of one accused to eight other persons. Lining up four accused with twelve innocent persons reduces the margin to one to three, inviting identification by chance or guesswork, as explained in Mboche v R. This upset the identifications of Mr Dahyabhai Patel, Mr Jayantilal Shah and Mrs Raicha. The parade by Chief Inspector Kamunya with two accused and twelve others was a minor infringement that could be safely allowed where other questions were satisfactorily resolved.

p. 2
03

Identification by a single witness

Holding

Although the trial court gave no warning on the danger of single-witness identification, the convictions on counts 1 and 3 stood because the identification circumstances were favourable and would have supported a properly given warning

Reasoning

The court acknowledged there was no proper warning on the danger of identification by a single witness, as required by Roria v R. However, the trial magistrate had found that identification occurred in daylight under favourable conditions, witnesses identified the appellant without hesitation, and the appellant drove the cars. In Mr Praful Bachulal's case the face and voice were recognised. These are the factors that would have been weighed had a proper warning been given.

p. 3
04

Admissibility of caution statements

Holding

Multiple trials within trials were procedurally wrong, but the court could leave aside the caution statements as the lower courts found they took the prosecution no further

Reasoning

The trial court erred in holding multiple trials within trials for the appellant's statements; there should be one trial per statement, with medical evidence where injuries are alleged. However, the appellant denied involvement in two statements and admitted the offence only as regards Mrs Raicha. The lower courts found the denials took the prosecution no further and there was other evidence on Mrs Raicha's case, so the error was not fatal.

p. 2

Legal principles established

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  • A conviction for robbery requires proof of theft, and theft requires that the thing taken be moved or caused to move; where the taking is interrupted before movement, only attempted robbery is made out
  • An identification parade in which several accused are lined up with too few other persons, below the ratio required by the Police Force Orders, is an unreliable source of identification
  • There should be one trial within a trial for each contested statement, not multiple trials within trials for one accused

Court orders

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  1. 1.Appeals against conviction on counts 1 and 3 dismissed
  2. 2.Conviction on count 2 quashed and the sentences upon it set aside
  3. 3.Conviction on count 4 reduced to attempted robbery contrary to section 297 of the Penal Code
  4. 4.Imprisonment on count 4 reduced to seven years; corporal punishment to stand as lawful for that offence
  5. 5.Appellant to continue serving ten years' concurrent imprisonment with fifteen strokes of corporal punishment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

PL
majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court at Kisumu
null
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code on matters of law

Relief refused

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Appeal against conviction on counts 1 and 3

There was admissible evidence on which the trial court could convict, including the chase, capture and recognition of the appellant and favourable daylight identification conditions

p. 4

Complaint of lack of fingerprint evidence

Point was not raised at trial and there was no evidence on it

p. 3

Costs

No costs order made (criminal appeal; judgment is silent on costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The conviction on count 2 is quashed, and sentences upon it set aside. On count 4 the conviction is reduced to attempted robbery contrary to section 297 of the Penal Code
p. 4final orders - conviction on count 2 quashed and count 4 reduced
The result is that the appellant will continue to serve ten years’ concurrent imprisonment, but will now have imposed upon him fifteen strokes of corporal punishment.
p. 4final orders - sentence as varied
In Sec 268 (5) it is laid down that “a person shall not be deemed to take a thing unless he moves the thing or causes it to move.”
p. 2elements of theft and taking
To reduce the margin to one accused to three others invites identification by chance or by guess work.
p. 2identification parade ratios
It seems to us that this represents the limit of noncompliance that can be safely allowed.
p. 2limits of permissible parade irregularity

Issues in the judgment

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minor

Judgment states identification on count 1 took place on September 9, 1984, about a year later, though the robbery is alleged to have occurred on October 6, 1981 and the parades were held in September 1982 - the year 1984 appears to be a typographical error for 1982

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kariuki v Republic [1985] KECA 104 (KLR)", Case Analysis (1985). Criminal Appeal No 74 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/104/eng@1985-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.