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Court of AppealPartially AllowedCriminal Appeal No. 275 of 2002· [2005] KECA 338 (KLR)

Juma Mohamed Ganzi, Ramadhan Mohamed Govi & Hassan Hussein Mwambiega v Republic

Court of Appeal of Kenya
21 January 2005
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
3,380 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 some robbery and arson convictions for lack of evidence but upheld others, confirming only one death sentence stands.

What this practically means

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Executive summary

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Three appellants were convicted at trial of six counts of robbery with violence (sentenced to death on each), two counts of arson (one year imprisonment each, concurrent), and acquitted of assault; a fourth accused was acquitted on all charges. Their consolidated first appeals to the High Court were dismissed except that the conviction for robbery in count V was quashed. On second appeal to the Court of Appeal at Mombasa, the Court confined itself to issues of law, restating that it cannot interfere with concurrent findings of fact unless based on no evidence or on misdirection or non-direction. It rejected the complaints about defective charge particulars under section 296(2) of the Penal Code and non-compliance with section 211 of the Criminal Procedure Code, holding both errors minor and curable under section 382, and noting the point was raised for the first time on second appeal. It upheld the convictions in counts II, III, IV and VII, resting on reliable visual identification by Muiruri, circumstantial evidence of the appellants hiding in the forest, and unexplained recent possession of stolen goods. However, it allowed the appeal on counts I and VIII for want of supporting evidence, quashing those convictions and setting aside the sentences, and on count VI substituted a conviction for theft under section 275 of the Penal Code with a two-year sentence. The Court left the sentences in counts III, IV and VII in abeyance so that the appellants suffer the death sentence on count II only. It also observed that multiple capital charges should be avoided. No costs order was made.

Key legal issues

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01

Defect in charge particulars for robbery with violence

Holding

Omission of the words 'dangerous or offensive weapon or instrument' did not render the charges defective where the prosecution also relied on the other two alternative elements, and the weapons named (G3 rifles, bows and arrows) are inherently dangerous

Reasoning

The Court restated the three alternative modes of committing robbery with violence under section 296(2). Since the prosecution relied on more than one mode and the weapons named are inherently dangerous, the omission caused no failure of justice and was curable under section 382 of the Penal Code. The point was also raised for the first time on second appeal despite representation at trial and first appeal.

p. 3
02

Compliance with section 211 of the Criminal Procedure Code

Holding

Failure to re-read the charge after finding a case to answer was a minor procedural error not occasioning a failure of justice, curable under section 382, and the appellants' conduct showed they knew the section's requirements

Reasoning

The appellants were represented by counsel who led them in their evidence and they called witnesses. Their choice to give sworn statements and call witnesses indicated awareness of the requirements of section 211. The error was minor and curable under section 382 of the Criminal Procedure Code.

p. 3
03

Identification, circumstantial evidence and recent possession

Holding

Concurrent findings that the appellants were identified by Muiruri, were arrested hiding in the forest, and were in unexplained recent possession of stolen goods could not be disturbed on second appeal

Reasoning

The trial Magistrate considered each appellant's alibi against the weight of prosecution evidence, the correct approach where alibi is first raised in the defence. The superior court re-appraised the evidence exhaustively and made similar findings. No misdirection by the two courts below was demonstrated, so the concurrent findings stood.

p. 5
04

Proof of counts I, VI and VIII

Holding

Count I (robbery of Francis Njuguna Njoroge) and count VIII (arson of Bernard Ongera's vehicle) were not proved for want of evidence; count VI was proved only as stealing, warranting substitution of a conviction for theft

Reasoning

No evidence proved that Njoroge was robbed of money or drugs or the circumstances of his killing; Ongera did not testify and no other witness supported count VIII. In count VI the evidence supported stealing, a minor and cognate offence to robbery, justifying substitution of a conviction for theft under section 275.

p. 4

Legal principles established

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  • On a second appeal the Court deals only with matters of law and will not disturb concurrent findings of fact unless based on no evidence or on misdirection or non-direction such that the appellants could not properly have been convicted
  • Robbery with violence under section 296(2) of the Penal Code is proved if any one of three alternative elements is established: being armed with a dangerous or offensive weapon, being in company with others, or wounding/beating/striking or using personal violence at or immediately before or after the robbery
  • It is not necessary to state in the charge sheet that weapons such as firearms, bows and arrows are dangerous or offensive weapons, as they are inherently so
  • Where a person is charged with several capital charges, it is preferable to proceed with one capital charge only and leave the others in abeyance; and where several capital convictions result, sentence of death should be passed on one count with the other sentences left in abeyance

Court orders

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  1. 1.Appeal allowed in respect of count I (robbery) and count VIII (arson); respective convictions quashed and sentences set aside
  2. 2.Appeal allowed in respect of count VI; conviction for robbery quashed and substituted with a conviction for theft contrary to section 275 of the Penal Code; each appellant sentenced to two years imprisonment with effect from 9th October 1998
  3. 3.Appeal against convictions in counts II, III, IV and VII dismissed
  4. 4.Sentences in counts III, IV and VII left in abeyance; appellants to suffer the sentence of death in respect of count II only

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 332(a) and (b)
  • Penal Codesection 251
  • Penal Codesection 89(1) and (2)
  • Penal Codesection 89(4)
  • Penal Codesection 382
  • Penal Codesection 275
  • Criminal Procedure Codesection 211
  • Criminal Procedure Codesection 382

Cases cited (6)

  • KARINGO V. R
    [1982] KLR 213

    Second appeal: no interference with concurrent findings of fact unless based on no evidence or misdirection/non-direction

  • Juma v. Republic
    [2003] 2 EA 471

    Relied on by appellants' counsel on defective charge particulars for robbery with violence

  • Oluoch v Republic
    [1985] KLR 549

    Definition of the circumstances in which robbery with violence under section 296(2) is committed

  • John Maina Kimemia and Another v. Republic
    Criminal Appeal Nos. 105 & 110 of 2003 (unreported)

    Words 'dangerous or offensive weapon' in section 296(2) bear the meaning in section 89(4) of the Penal Code

  • Wang'ombe v. The Republic
    [1980] KLR 149

    Correct approach where defence of alibi is first raised in the accused's defence

  • Muiruri v. Republic
    [1980] KLR 70

    Preference for proceeding with one capital charge only and leaving other capital charges in abeyance

On appeal from
High Court (superior court)
null (consolidated appeals against conviction and sentence, numbers not stated)
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code; the Court confines itself to issues of law

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 Mohamed Ganzi, Ramadhan Mohamed Govi & Hassan Hussein Mwambiega v Republic", Case Analysis (2005). Criminal Appeal No. 275 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/338/eng@2005-01-21

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