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Court of AppealDismissedCriminal Appeal 49 of 2007· [2008] KECA 162 (KLR)

SAMSON KATANA KAZUNGU v REPUBLIC [2008] KECA 162 (KLR)

Court of Appeal of Kenya
18 July 2008
ROR.S.C OmoloSBS.E.O BosireJOJ.W. Onyango Otieno
2,943 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it only reviews legal errors on a second appeal, upholding a robbery conviction and death sentence.

What this practically means

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Executive summary

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The appellant, Samson Katana Kazungu, was convicted by the Senior Resident Magistrate's Court at Malindi of robbery with violence contrary to section 296(2) of the Penal Code and one count of assault causing actual bodily harm, and sentenced to death on the robbery count. His first appeal to the High Court at Mombasa (Sergon and Maraga, JJ) succeeded on the assault charge but failed on the robbery count, leaving the death sentence intact. He then brought this second and final appeal to the Court of Appeal at Malindi on two grounds: that his identification or recognition by PW1 and PW2 was unsatisfactory, and that there was insufficient proof that recovered items were stolen and in his possession. The Court held that both grounds raised matters of fact on which it has no jurisdiction under section 361(1) of the Criminal Procedure Code, which confines second appeals to questions of law. Concurrent findings of fact by the two courts below could not be disturbed unless based on no evidence at all or findings no reasonable court could reach. The Court found that the conviction rested on two independent pillars - recognition of the appellant by witnesses who knew him, and recovery of stolen items from a house to which he led the police, for which he offered no explanation. The Court applied Okeno v R, R v Turnbull and Cleophas Otieno Wamunga v Republic and dismissed the appeal in its entirety, affirming the conviction and sentence.

Key legal issues

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01

Jurisdiction of the Court of Appeal on second appeal

Holding

The Court has no jurisdiction to entertain matters of fact on a second appeal; only questions of law are appealable under section 361(1) of the Criminal Procedure Code.

Reasoning

The appellant's two grounds attacked the sufficiency and quality of the identification and recovery evidence. The Court held such matters fall within the purview of the trial court and first appellate court. It could interfere only where the concurrent findings were based on no evidence at all or no reasonable court could have reached them, which was not shown here.

p. 4
02

Recognition evidence and identification parades

Holding

Recognition of a known person is more reliable than identification of a stranger, but must still be examined carefully; an identification parade is unnecessary where the witness knows the suspect by name and appearance.

Reasoning

Kenga knew the appellant by appearance and name, having seen him pass his shop and having married a woman from the neighbourhood, so a parade was unnecessary for him. Failure to conduct one for PW2 did not occasion a failure of justice because conviction did not rest solely on identification. The Turnbull warning on mistakes in recognition was reiterated.

p. 4
03

Doctrine of recent possession as corroboration of participation

Holding

An accused found with recently stolen items whom he cannot account for, and who led police to the recovery, may properly be convicted of robbery even absent visual identification at the scene.

Reasoning

The appellant led police to Malanga and personally removed the stolen radio and track suit; the recovery evidence was unchallenged. He gave no explanation for possession as required by section 111 of the Evidence Act. Though recovery occurred over two months later and items could change hands easily, he was not a receiver or handler, and possession of stolen goods proved his participation in the robbery.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal lies only on matters of law; the Court has no jurisdiction over matters of fact, including severity of sentence
  • Concurrent findings of fact by the subordinate court and the superior court cannot be disturbed on second appeal unless shown to be based on no evidence at all
  • Even where recognition is more reliable than identification of a stranger, courts must examine identification evidence with care

Court orders

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  1. 1.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 140
  • Penal Codesection 144(1)
  • Penal Codesection 251
  • Penal Codesection 322(2)
  • Criminal Procedure Codesection 361(1)
  • Evidence Actsection 111

Cases cited (3)

  • Okeno vs. R.
    (1972) EA 32
  • R v. Turnbull
    (1976) 3 ALL ER 549
  • Cleophas Otieno Wamunga vs. Republic
    Criminal Appeal No. 20 of 1989
On appeal from
High Court of Kenya at Mombasa
H.C. Criminal Appeal No. 207 of 2004
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal lying on matters of law only)

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, "SAMSON KATANA KAZUNGU v REPUBLIC [2008] KECA 162 (KLR)", Case Analysis (2008). Criminal Appeal 49 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/162/eng@2008-07-18

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