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Court of AppealDismissedCriminal Appeal 10 of 1992· [1992] KECA 22 (KLR)

Peter Onduko Mochache v Republic [1992] KECA 22 (KLR)

Court of Appeal of Kenya
28 February 1992
JGJ.M. GachuhiRKR.O. KwachACA.M. Cockar
1,637 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that every member of a robbery gang is guilty of the gang's crimes, even if only some were identified.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nakuru by Peter Onduko Mochache, the fifth of six accused convicted at the Resident Magistrate's Court at Kericho on counts of robbery with violence contrary to Section 296(1) of the Penal Code and assault causing actual bodily harm. He was sentenced to eight years imprisonment with five strokes of corporal punishment on count 1 and two years on count 2, to run concurrently, on account of two previous similar convictions. His first appeal to the High Court (Tanui, J) was dismissed. The Court of Appeal restated that on a second appeal no appeal lies on facts under Section 361(1) of the Criminal Procedure Code. It considered three grounds: that the count 2 complainant identified only the third accused; that the count 1 complainant had not identified the appellant at the scene; and that the sole evidence of P.W.2, who witnessed the hatching of the robbery plot and division of the loot, required corroboration. The court held that all gang members acting in concert were equally liable for each other's acts in furtherance of the common intention to rob; that the prosecution case did not rest on visual identification at the scene but on P.W.2's detailed, credible account, supported by recoveries and matching sums; and that corroboration was not required. Finally, the court rejected the State's concession that P.W.2 was an incompetent witness as the first accused's wife, holding the evidence insufficient to establish marriage. The appeal was dismissed.

Key legal issues

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01

Whether a gang member not identified at the scene is liable for offences committed by other gang members

Holding

Liability attaches equally to every member of the gang acting in concert in furtherance of the common intention to rob

Reasoning

The complainant in count 2 saw only the third accused assault her, but her evidence established that a gang of robbers acted together, overpowered her husband and assaulted her. Each member acted in furtherance of the common intention to rob, so the appellant, found by both lower courts to be a gang member, is equally guilty of the acts of the others.

p. 2
02

Whether the sole identifying evidence of P.W.2 required corroboration

Holding

No corroboration was required; her evidence was credible and amply supported by surrounding circumstances

Reasoning

P.W.2 had ample opportunity of uninterrupted observation of the plot and the division of the loot. Though the only direct evidence against the appellant, her account was corroborated in material respects: the first accused was identified at the robbery scene, Shs 1,750/- was recovered where she said it was hidden, and the sum she saw divided matched the amount stolen. Both lower courts accepted her as a witness of truth.

p. 2
03

Whether P.W.2 was an incompetent witness as the alleged wife of the first accused

Holding

The evidence did not establish that she was the first accused's wife; the State's concession of the appeal on that ground was rejected

Reasoning

The first accused's question as to how long she had stayed with him was inconsistent with a lawful marriage, and her conduct in leaving after his arrest was inconsistent with marital status. The trial judge had made no finding on the issue, leaving it to this Court, which found cohabitation alone insufficient to prove marriage.

p. 3

Legal principles established

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  • On a second appeal, no appeal lies on facts to the Court of Appeal under Section 361(1) of the Criminal Procedure Code; the court concerns itself only with matters of law
  • A person who did not personally identify a complainant's assailant is nevertheless guilty where, as a member of a gang acting with common intention, the offence was committed in furtherance of that common intention
  • Cohabitation with a man does not by itself establish that a woman is his wife for purposes of the competency bar on spousal testimony; the prosecution may rely on her evidence where the marital status is not proved

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentences imposed by the trial court, as affirmed by the High Court, stand
On appeal from
High Court of Kenya, Nakuru
H.C. CR. APP No 253 of 1991
Jurisdiction invoked
Second appeal under Section 361(1) of the Criminal Procedure Code

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, "Peter Onduko Mochache v Republic [1992] KECA 22 (KLR)", Case Analysis (1992). Criminal Appeal 10 of 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/22/eng@1992-02-28

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