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Court of AppealDismissedCriminal Appeal 156 of 2005· [2007] KECA 451 (KLR)

SAID NGUTO MASILA & Another v REPUBLIC [2007] KECA 451 (KLR)

Court of Appeal of Kenya
19 January 2007
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
2,048 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery conviction based on one witness who recognized the attackers, confirming that second appeals only review legal errors.

What this practically means

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Executive summary

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The two appellants were jointly charged with two counts of robbery with violence contrary to section 296(2) of the Penal Code, convicted by the Senior Resident Magistrate at Kwale and sentenced to death. Their first appeal to the High Court at Mombasa (Mwera and Maraga JJ) succeeded on the second count only, the appeal on the first count being dismissed. On second appeal before the Court of Appeal at Mombasa (Omolo, O'Kubasu and Githinji JJA), counsel for the appellants abandoned a submission that the charge sheet was fatally defective and pressed only the issue of identification, contending that the incident lasted about two minutes with only a lamp for light. The State urged dismissal, pointing to concurrent findings that the complainant gave credible evidence. The Court held that this being a second appeal under section 361(1) of the Criminal Procedure Code, only matters of law fell for consideration. Although the evidence of a single identifying witness in difficult circumstances must be tested with the greatest care, this was a case of recognition rather than identification: the complainant knew both appellants before the robbery. The Court declined to disturb the concurrent findings of fact of the two lower courts, absent absence of evidence, misapprehension of the evidence or wrong principles. The Court noted the appellants were lucky the superior court allowed the appeal on the second count but that nothing could be done on that aspect. The appeal was dismissed in its entirety. No costs order was recorded.

Key legal issues

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01

Sufficiency of single-witness recognition evidence in night-time capital robbery

Holding

The conviction on the first count was safe because the complainant knew both appellants before the incident, making it a case of recognition rather than identification, and the testimony was carefully tested.

Reasoning

The robbery occurred at night with only a lamp for light and lasted about two minutes, conditions requiring the greatest care with a single identifying witness. However, the complainant had prior personal knowledge of both appellants - the first appellant visited her place and the second was a former schoolmate known by nickname - so the evidence was of recognition, which is more reliable than identification of a stranger. The trial and first appellate courts made concurrent findings that the recognition was positive and reliable.

p. 4
02

Scope of a second appeal and interference with concurrent findings of fact

Holding

This Court, hearing a second appeal, considers only matters of law and will not disturb concurrent findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

Section 361(1) of the Criminal Procedure Code confines a second appeal to matters of law. The appellants' challenge was essentially to the weight and credibility of the identification evidence, which are matters of fact. Both courts below had reviewed the evidence and reached the same conclusion, and the appellants demonstrated no error of principle, no absence of evidence and no misapprehension of the evidence that would justify interference.

p. 4

Legal principles established

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  • On a second appeal, only matters of law fall for consideration under section 361(1) of the Criminal Procedure Code
  • The evidence of a single identifying witness in difficult circumstances must be tested with the greatest care and can only found a conviction where the testimony is free from the possibility of error
  • Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger
  • The Court of Appeal will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles

Court orders

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  1. 1.The appeal be and is hereby dismissed in its entirety

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Code (Cap. 75 Laws of Kenya)section 361(1)

Cases cited (5)

  • Abdallah bin Wendo & Another v. R
    [1953] 20 EACA 166
  • Roria v. R
    [1967] E.A 583
  • Maitanyi v. Republic
    [1986] KLR 198
  • Anjononi v. R
    [1980] KLR 59
  • Chemagong v. R
    [1984] KLR 611
On appeal from
High Court of Kenya at Mombasa
H.C.CR. A. Nos. 341 & 352 of 2003
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (Cap. 75) - second appeal confined to matters 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, "SAID NGUTO MASILA & Another v REPUBLIC [2007] KECA 451 (KLR)", Case Analysis (2007). Criminal Appeal 156 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/451/eng@2007-01-19

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