Mulewa & another v Republic [2004] KECA 56 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the death sentences of two men convicted of hijacking a tourist minibus, ruling that eyewitness identification and a reconstructed court record were sufficient.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of a reconstructed trial record for the determination of a second appeal
The absence of the original charge sheet and part of the record did not render the proceedings a nullity; the reconstructed record, accepted without objection and substantially reproducing the charge in the judgment, sufficed.
The original record could not be traced when the first appeal was heard; a typed copy supplied by one appellant was used and Hayanga J ordered the record compiled. Before the superior court the appellants and the State accepted the record as fair and accurate and raised no objection. A differently constituted bench of this Court had already overruled a preliminary argument for acquittal based on the missing file. The charge was substantially reproduced in the trial magistrate's judgment and no error was alleged in the record of the eighteen prosecution witnesses and the defence.
Duplicity of the count charging robbery of the motor vehicle
The count was not bad for duplicity notwithstanding that it referred both to the robbery of the vehicle and to the killing of Michael Kazungu.
The complaint was that count one combined robbery of the motor vehicle with reference to the killing of Michael Kazungu, making it duplex. The superior court had investigated the complaint and found it unmeritorious. This Court agreed, holding the charge was not bad for duplicity, and found no merit in that first ground of appeal.
Scope of a second appeal vis-à-vis concurrent findings of fact
Concurrent findings of fact of the two courts below could not be disturbed absent misdirection such that it is reasonably probable the appellants would not have been convicted without them; no such misdirection existed here.
Citing Karingo v Republic, the court reminded itself of the limits of a second appeal. It examined the identification, accomplice and confession evidence, found the trial magistrate had directed himself correctly on both law and evidence, and found the superior court had re-evaluated and reconsidered the evidence as required before reaching the same conclusions. It could find no misdirections in the superior court's judgment.
Reliability and sufficiency of the visual identification evidence
The identification evidence was watertight: the witnesses had two good opportunities to observe the appellants in daylight, and the discrepancies in their accounts were immaterial.
The robbery occurred in broad daylight. The witnesses had two good opportunities to observe the appellants: the five-minute inspection of the vehicle and the 2 km journey before it turned onto a side road. Their evidence was consistent that one robber had a pistol and the other a knife. The discrepancy as to whether the porter or the tour leader was shot was immaterial and did not reflect on credibility. The contention that the witnesses were terrified and the journey brief was unsupported by evidence and had been rejected by the two courts below.
Corroboration of accomplice evidence and repudiated confessions
Kimeu was properly treated as an accomplice and the repudiated confessions required corroboration; the visual identification by Mungoye and Shikoli furnished that corroboration.
Kimeu, a taxi driver whose vehicle transported some participants to Vipingo and who fully participated in the robbery, was properly treated as an accomplice. The trial magistrate directed himself properly on the need to corroborate both accomplice evidence and repudiated confessions. The visual identification of the appellants by Mungoye and Shikoli was found corroborative of the accomplice's evidence and of the repudiated confessions; no objections were raised to the identification parades at the time.
Possession of recently stolen property by the first appellant
The pair of shoes recovered from the first appellant was identified as property of Richard Haidn; the courts below were entitled to treat the claim of ownership as an afterthought and to draw the presumption of theft or handling.
Haidn's evidence that a pair of shoes stolen from him was recovered from the first appellant was not cross-examined on. The trial magistrate found the first appellant's belated claim of ownership an afterthought and held that possession of recently stolen property raised a rebuttable presumption that he was either a thief or a handler, which was not rebutted. This Court upheld these as findings of fact fully supported by the recorded evidence.
Alibi defence of the second appellant
The second appellant's defence did not amount to an alibi because he went to Taveta after the date of the commission of the offence.
The second appellant asserted that he travelled to Taveta on 28th March 1992 and returned on 1st April 1992, and complained that this defence was ignored. The Court held that the defence did not amount to an alibi since he went to Taveta after the date of the offence, and the complaint therefore had no merit.
Legal principles established
#- On a second appeal, an appellate court cannot upset concurrent findings of fact by the two courts below unless satisfied that the findings were based on misdirections of such a nature that it is reasonably probable the appellant would not have been convicted without them.
- Where the evidence implicating an accused person is entirely of visual identification, that evidence must be watertight to justify a conviction.
- A reconstructed trial record, accepted by the parties without objection and with the charge substantially reproduced in the trial judgment, is sufficient for the determination of an appeal.
Court orders
#- 1.The appeals of both appellants are dismissed, leaving the convictions and sentences of death intact.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. Nos. 289 & 288 of 1995
- Jurisdiction invoked
- Second appeal to the Court of Appeal in a criminal matter; the judgment describes itself as a second appeal and invokes the Criminal Procedure Code (referring to sections 354 and 357), citing no specific constitutional provision for its jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulewa & another v Republic [2004] KECA 56 (KLR)", Case Analysis (2004). Criminal Appeal No. 103 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/56/eng@2004-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.