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Court of AppealPartially AllowedCriminal Appeal No. 142 of 1989

KATANA vs REPUBLIC [2004] KECA 125 (KLR)

Court of Appeal of Kenya
21 February 1990
718 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 quashed a robbery conviction because identification evidence was too weak, and ruled courts must follow set steps before revoking probation orders.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Hancox CJ, Nyarangi and Kwach JJA) heard a second appeal by Katana against convictions on three offences: robbery of passengers in an omnibus between Malindi and Kilifi on 20th December 1987, burglary and stealing on 22nd March 1988, and stealing from the person of two tourists near the Kilifi ferry on 7th August 1988. On the robbery count, the court found the evidence of identification wanting: the sole near witness was inconsistent as to whether the appellant was inside or outside the bus when the knife was drawn and the luggage taken, and this fell short of the criminal standard of proof of aiding and abetting or presence. The court respectfully disagreed with the first appellate judge and allowed the appeal on that charge. The court also held that the trial magistrate had failed to follow the mandatory procedure for dealing with breach of a probation order, namely putting the earlier conviction and the order to the accused and securing his answer; the State invited restoration of the probation order, which the court declined as inappropriate. The convictions and sentences on the second and third charges were proper and not open to interference on a second appeal. The appellant was left to serve a total of 4½ years' imprisonment with corporal punishment; the appeals were otherwise dismissed. No prior authorities were cited and no costs order was made.

Questions the Court framed

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

  1. 1.Whether the appellant was satisfactorily identified as aiding and abetting or participating in the robbery of the omnibus passengers
  2. 2.Whether the procedure for dealing with breach of a probation order was followed before revoking the probation order and sentencing the appellant
  3. 3.Whether the convictions and sentences on the burglary and stealing charge and the stealing from the person charge could be disturbed on a second appeal

Key legal issues

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01

Identification and proof of the appellant's participation in the robbery on the omnibus

Holding

The appeal on the robbery charge was allowed because there was no satisfactory identification of the appellant as being outside the omnibus when the knife was drawn and luggage removed; the prosecution failed to prove aiding and abetting or presence to the criminal standard.

Reasoning

The court rested its decision on evidential insufficiency rather than on whether the common intention to avoid fare payment persisted outside the bus. The only near evidence was that of Kafidha Katana, whose testimony was internally inconsistent as to whether the accused were inside the bus or had alighted. That fell short of proving beyond reasonable doubt that the appellant aided and abetted the asportation of the luggage, and the court respectfully disagreed with the first appellate judge's contrary finding.

p. 2
02

Procedure for revoking a probation order on breach

Holding

The revocation of the probation order and the resulting sentence were irregular because the mandatory procedure of putting the earlier conviction and order to the accused and securing his answer was never followed.

Reasoning

The court observed that before a court deals with breach of a probation order it must put the earlier conviction and the order to the accused and secure his answer. No semblance of that procedure was followed when the trial magistrate purported to revoke the probation order of 23rd June and sentenced the appellant to three years' imprisonment and two strokes of corporal punishment. The respondent conceded the point, inviting restoration of the order, which the court declined as inappropriate in the circumstances.

p. 2
03

Second appeal against convictions and sentences on the burglary and stealing and theft from the person charges

Holding

The convictions were proper and the sentences could not be disturbed on a second appeal; those appeals were dismissed.

Reasoning

The court considered all the appellant's grounds in his two memoranda and supplementary sheet, but found the convictions on the burglary and stealing of 22nd March 1988 and the stealing from two tourists of 7th August 1988 were proper. The sentences imposed, as varied by the High Court, were not matters for the Court of Appeal on second appeal, so those appeals failed.

p. 3

Legal principles established

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  • Before a court can deal with the breach of a probation order, it must put the earlier conviction and the order to the accused and secure his answer thereto.
  • On a second appeal the Court of Appeal will not interfere with findings of fact or sentences properly imposed by the courts below; a conviction must rest on evidence satisfying the criminal standard of proof, including on questions of identification and common intention.

Court orders

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  1. 1.Appeal allowed on the robbery charge arising from the omnibus incident of 20th December
  2. 2.Convictions on the burglary and stealing charge and the stealing from the person charge affirmed
  3. 3.Appellant to serve a total of 4½ years' imprisonment and suffer 2 strokes' corporal punishment plus the additional strokes imposed by the judge on restoration of the third conviction to theft from the person contrary to section 279(a) of the Penal Code
  4. 4.Save as indicated, the appeals dismissed

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court
Jurisdiction invoked
Second appellate jurisdiction over criminal appeals (Court of Appeal hearing a second appeal from the High Court exercising first appellate jurisdiction)

Relief refused

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Restoration of the revoked probation order (as invited by Principal State Counsel Mr Metho)

Even if the court had jurisdiction, it would be inappropriate to order the probation period to run concurrently with, or to follow, the terms of imprisonment

p. 2

Interference with the convictions and sentences on the second and third offences

The appellant was properly convicted and the sentences were not open to disturbance on a second appeal

p. 3

Costs

No costs order recorded in the judgment (criminal appeal)

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.

We would prefer to rest our decision upon the lack of any satisfactory identification of this appellant as having been outside the omnibus at the relevant time
p. 2Identification evidence and criminal standard of proof
before a court can deal with the breach of a probation order, it must put the earlier conviction and the order to the accused and secure his answer thereto
p. 2Mandatory procedure on breach of probation order
In the result, the appellant will serve a total of 4 ½ years’ imprisonment and suffer 2 strokes’ corporal punishment plus the additional strokes imposed by the judge when restoring the conviction on the third offence to theft from the person contrary to section 279(a) of the Penal Code. Save as indicated above, the appeals are dismissed.
p. 3Final orders and disposition

Issues in the judgment

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minor

The judgment is internally unclear about the basis of the sentence arithmetic: it states the appellant was sentenced to three years' imprisonment on the burglary and stealing charge, then to two years' imprisonment concurrently, and concludes he will serve a total of 4½ years, without explaining the full computation.

minor

The judgment refers to the revocation of a probation order by the trial magistrate but does not state the date or terms of that order unambiguously, and the text contains typographical errors (e.g. 'tht', '2 stroke’s').

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, "KATANA vs REPUBLIC [2004] KECA 125 (KLR)", Case Analysis (1990). Criminal Appeal No. 142 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/125/eng@2004-04-04

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