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Court of AppealPartially AllowedCriminal Appeals 179, 180 & 181 of 2004· [2005] KECA 175 (KLR)

Juma Baya & 2 others v Republic [2005] KECA 175 (KLR)

Court of Appeal of Kenya
22 July 2005
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld three robbery convictions and two death sentences, but paused one sentencing until doctors confirm the man's age.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Tunoi, O'Kubasu and Waki, JJ.A) determined three consolidated second appeals by Juma Baya, Katana Mangi and Baya Mazera against convictions for robbery with violence contrary to section 296(2) of the Penal Code and sentences of death, their first appeals having been dismissed by the High Court at Mombasa on 24 August 2004. The prosecution case rested on the shopkeeper Abdalla Mohamed and his 15-year-old son, who recognised the appellants during a night robbery in which money, a wristwatch, beads and gold ornaments were stolen; the three were found hiding in the shop's ceiling with the stolen property, pangas and knives. On the voire dire ground, the court held that a witness aged fifteen is not a child of tender years, the threshold being fourteen years absent special circumstances, and that the question arises at trial, not when the offence was committed. The claim that the trial was a nullity failed because the appearances before a District Magistrate II and an unqualified prosecutor were mere mentions at which nothing of substance occurred, the trial itself being conducted by C.I.P. Auma before the Senior Resident Magistrate. The court declined to disturb concurrent findings of fact that the appellants were correctly identified, such findings binding a second appellate court, and held that single-witness identification authorities did not apply. The complaint about defective appeal records was rejected. All appeals against conviction were dismissed and the death sentences on the first and third appellants confirmed; because the second appellant alleged he was born on 15 June 1985 and was a minor, confirmation of his sentence was deferred pending medical determination of his age. No costs order was made.

Key legal issues

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01

Whether PW2, aged 15 years at trial, was a child of tender years requiring a voire dire examination before his evidence was taken

Holding

No. A child of tender years means a child under fourteen absent special circumstances; PW2 was 15 at trial, so no voire dire was necessary, and his age at the time of the offence was irrelevant.

Reasoning

The Oaths and Statutory Declarations Act does not define 'child of tender years' for purposes of section 19. Following R v Campbell, whether a child is of tender years is a matter of the good sense of the court; Kibangeny Arap Kolil v R fixed the threshold, absent special circumstances, at fourteen years. Bukenya confirms the inquiry is directed to the trial stage, not the time of the offence. PW2 being 15 when he testified, the trial court was not obliged to conduct a voire dire, and ground one failed.

p. 2
02

Whether the trial was a nullity because the prosecution was at some stages conducted by a person not authorised to prosecute

Holding

No. The appearances complained of were mentions only before a DM II, at which no trial took place and no witnesses testified; the trial itself was conducted by C.I.P. Auma before J. Oseko, SRM.

Reasoning

The record showed that the sittings before G. Oyugi, DM II, with P.C. Asuma acting as prosecutor, were mentions held only for the purpose of assigning hearing dates before the proper trial magistrate; nothing of substance took place and no evidence was received. Consistently with this Court's earlier decision in Ahmed Anakeya Mohamed & Another v R, appearances at which no evidence is taken do not attract the rule against unqualified prosecutors, and the Elirema line of authority did not apply. Ground three therefore failed.

p. 3
03

Whether the identification of the appellants was free of error and whether the conviction rested on sufficient evidence

Holding

Yes. PW1 and PW2 recognised the appellants, and all three were flushed out of the ceiling with the stolen property; the concurrent findings of correct identification bind this Court.

Reasoning

The trial court and the first appellate court made concurrent findings of fact, based on evidence, that PW1 and PW2 correctly identified the gang that robbed the shop and that the same gang was found hiding in the ceiling with the stolen property, pangas and knives. Such concurrent findings are binding on a second appellate court. Because identification was by recognition by two witnesses and the appellants were trapped with the stolen goods, the dangers of single-witness identification addressed in Wendo v R and Roria v R were out of scope. Grounds five and six failed.

p. 3
04

Whether the poorly prepared appeal records prejudiced the appellants in the prosecution of their appeals

Holding

No. Though the defects were visible and glaring, the records were legible, credible and correctly indexed and did not prevent the appellants from prosecuting their appeals.

Reasoning

The Court acknowledged that the defects on the records were visible and glaring but was satisfied that they had not prevented the appellants from prosecuting their appeals. It described the records as legible, credible and correctly indexed, found the contention without merit, and proceeded to dismiss the appeals on conviction.

p. 3
05

Whether the age of the 2nd appellant, alleged to be a minor born on 15th June, 1985, ought to be determined before his sentence is confirmed

Holding

Yes, as to sentence only. Confirmation of the 2nd appellant's death sentence was deferred to the next session at Mombasa, with his age to be medically determined; his appeal against conviction was nonetheless dismissed.

Reasoning

Although the 2nd appellant's appeal against conviction failed, his allegation that he was born on 15th June, 1985, and was therefore a minor, led the Court to defer the question of confirmation of his sentence to the next session at Mombasa. The Deputy Registrar was directed to cause his age to be determined at the Provincial Medical Hospital, Mombasa, before the decision on sentence was made.

p. 4

Legal principles established

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  • Absent special circumstances, a 'child of tender years' for purposes of receiving evidence means any child of any age, or apparent age, of under fourteen years.
  • The question whether a witness is a child of tender years arises at the trial, not at the time the offence was committed.
  • Mentions before a magistrate or prosecutor not authorised to conduct a trial do not vitiate the trial where no trial proceedings take place and no witnesses testify at those appearances.
  • On a second appeal, concurrent findings of fact by the trial court and the first appellate court, based on evidence, are binding on the second appellate court.
  • Where a convicted person alleges he was a minor, confirmation of sentence may be deferred pending medical determination of his age.

Court orders

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  1. 1.Appeal of the 1st appellant, Juma Baya, dismissed.
  2. 2.Appeal of the 3rd appellant, Baya Mazera, dismissed.
  3. 3.Appeal of the 2nd appellant, Katana Mangi, against conviction dismissed.
  4. 4.Sentences of death passed on the 1st appellant (Juma Baya) and the 3rd appellant (Baya Mazera) confirmed.
  5. 5.Question of confirmation of the 2nd appellant's (Katana Mangi's) sentence deferred to the next session at Mombasa.
  6. 6.Deputy Registrar of the Court to cause the age of the 2nd appellant to be determined at the Provincial Medical Hospital, Mombasa (by the P.M.O., Mombasa), before the decision on sentence is made.

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Oaths and Statutory Declarations Actsection 19

Cases cited (5)

  • Kibangeny Arap Kolil v R
    [1959] EA 92
  • Bukenya and Another v Uganda
    [2002] EA 348 (as printed)
  • Ahmed Anakeya Mohamed & Another v R
    Mombasa Criminal Appeal No. 161 of 2004 (unreported)
  • Wendo v R
    [1953] 20 EACA 166
  • Roria v R
    [1967] EA 583
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Not expressly stated in the judgment; the matter reached the Court of Appeal as a consolidated second criminal appeal (Criminal Appeals 179, 180 & 181 of 2004) following the dismissal of the appellants' first appeals by the High Court at Mombasa.

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, "Juma Baya & 2 others v Republic [2005] KECA 175 (KLR)", Case Analysis (2005). Criminal Appeals 179, 180 & 181 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/175/eng@2005-07-22

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