Charles Chemasweti & another v Republic [2005] KECA 23 (KLR)
The bottom line
#Kenya's Court of Appeal upheld two men's robbery convictions and death sentences, ruling that witnesses who know an attacker can reliably recognise them.
What this practically means
#Executive summary
#Key legal issues
#Whether the charge was defective for duplexity arising from the use of the word 'or' in the particulars
The charge was not defective. The appellants well knew the charge they were facing; in any event section 382 of the Criminal Procedure Code cures any irregularity, and no prejudice or failure of justice was occasioned.
The court found no substance in the complaint that the use of the word 'or' rendered the charge duplex. The appellants knew precisely the case they had to meet, and section 382 of the Criminal Procedure Code cures charging irregularities. The court was satisfied that no prejudice was suffered and no failure of justice was occasioned by the alleged defect, so the conviction could not be impugned on this ground.
Whether the ballistic report and the P3 form were improperly produced
The grounds lacked merit; the reports were produced pursuant to section 77 of the Evidence Act and were properly before the court.
The complaint was that the ballistic report was produced by PW5, who was not its maker, and the P3 form by a clinical officer who was not a medical practitioner. The court dismissed this as a feeble attempt, holding that both reports were produced pursuant to section 77 of the Evidence Act, which regularises the production of such documents by persons other than their authors or makers.
Whether the charge and cautionary statements were irregularly taken by the investigating officer and inadmissible
The statements were produced at trial without any objection and, together with the recovered blanket and rifle, associated the appellants with the commission of the crime.
Both appellants recorded charge and cautionary statements in which each admitted involvement while blaming the other for instigating the robbery. Counsel for the 2nd appellant attacked the confessions as inconclusive. The court noted that the statements, taken by the investigating officer, were produced at trial without any objection; taken with the recovery of a stolen blanket and a rifle from the 1st appellant's house, they associated the appellants with the offence.
Whether the evidence of identification/recognition was safe and positive enough to support the conviction
The conviction was based on recognition, not identification of strangers: four witnesses who knew the appellants recognised them, with sufficient light from the lamp, moonlight and the burning house, and the first police officer to arrive was given their names.
Identification was the main issue in the consolidated appeals. The court held that the complainant, his sister, his brother and a neighbour — all of whom knew the appellants — recognised them on the material night, aided by the lamp, moonlight and the light from the burning house. The first police officer on the scene was immediately given their names. Applying the Anjononi principle that recognition is more reliable than identification of a stranger, the evidence was very sound and the conviction inevitable.
Whether the first appellate court failed to reconsider and re-evaluate the evidence before upholding the conviction
The learned Judges of the superior court reviewed the evidence on record and considered the submissions before concluding the convictions were safe, acting in the manner required by the guidelines in Okeno v R.
It was argued that had the superior court re-evaluated the evidence it would have reached a different conclusion. The court disagreed, noting that the record showed the learned Judges reviewed the evidence and considered the submissions before concluding the convictions were safe. Their approach accorded with the Okeno v R guidelines requiring a first appellate court to reconsider the evidence and draw its own conclusions, and they could not be faulted.
Legal principles established
#- On a second appeal to the Court of Appeal only matters of law fall for consideration; matters of fact have been dealt with and resolved by the trial court and the first appellate court.
- An irregularity in a charge, including duplexity said to arise from the use of the word 'or', is cured by section 382 of the Criminal Procedure Code where the accused knew the charge and no prejudice or failure of justice is occasioned.
- Reports relating to recovered weapons and injuries are properly received in evidence when produced in accordance with section 77 of the Evidence Act, even by a person who is not the maker of the report.
- Evidence of recognition of an assailant known to the witness is more reliable than identification of a stranger and, where lighting conditions permit positive recognition by several witnesses, it sustains a conviction even without an identification parade.
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.The convictions for robbery with violence contrary to section 296(2) of the Penal Code and the sentences of death, as upheld by the High Court, consequently stand
- On appeal from
- High Court of Kenya at Kitale
- H.C.CR.C. No. 208 & 306 of 2001
- Jurisdiction invoked
- Second appeal to the Court of Appeal under section 361(1) of the Criminal Procedure Code, confining the appeal to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Chemasweti & another v Republic [2005] KECA 23 (KLR)", Case Analysis (2005). Criminal Appeal 191 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/23/eng@2005-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.