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Court of AppealDismissedCriminal Appeal 102 of 2007· [2008] KECA 192 (KLR)

Harward Shikanga Alias Kadogo & another v Republic [2008] KECA 192 (KLR)

Court of Appeal of Kenya
27 June 2008
ROR. S. C. OmoloSBS. E. O. BosireEOE. O. O'Kubasu
2,058 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that failing to call an investigating officer does not automatically overturn a robbery conviction if other strong evidence exists.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu against conviction and sentence for robbery with violence contrary to section 296(2) of the Penal Code. The appellants had been convicted by a Senior Resident Magistrate at Maseno, who sentenced them to death on the robbery count and ten years' imprisonment on a rape count. The High Court at Kisumu (Mwera & Mugo, JJ.) on 3rd July 2007 confirmed the robbery conviction but quashed the rape conviction on the basis that the charge was fatally defective. Before the Court of Appeal, counsel argued three points: that the prosecution's failure to call the investigating officer vitiated the trial; that the burden of proof was shifted to the appellants in the treatment of their alibi defences; and that the first appellate court failed to re-evaluate the evidence as required by Okeno v Republic. The Court, restating that its jurisdiction on a second appeal is confined to matters of law under section 361(1) of the Criminal Procedure Code, dismissed all grounds. It held that while the non-calling of investigating officers is unsatisfactory practice and may in some cases be fatal to a conviction, it did not occasion a failure of justice here given the eyewitness identification evidence and the evidence of the arresting officer. It further held that the burden of proof never shifts to an accused, that the magistrate's remarks did not impose such a burden, and that the High Court adequately discharged its re-evaluation duty. In the face of concurrent findings of fact by the two lower courts, the appeals wholly failed and were dismissed in their entirety.

Key legal issues

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01

Effect of non-calling of the investigating officer

Holding

The failure to call the investigating officer did not vitiate the convictions because eyewitnesses and the arresting officer gave evidence and no failure of justice was occasioned.

Reasoning

The Court endorsed the criticism in Bwaneka v Uganda of the practice of not calling investigating officers, expressing hope that prosecuting authorities would discontinue it, and noted such failure may in some circumstances be fatal. However, here the complainant and her cousins identified the appellants during the attack, and PC Rono testified to the arrest, so no lacuna arose.

p. 2
02

Alibi and burden of proof

Holding

The trial magistrate's remarks did not shift the burden of proof to the appellants; she merely weighed the late-raised alibi against the whole evidence, and the concurrent findings below stand.

Reasoning

Relying on Sekitoleko v Uganda and Karanja v Republic, the Court reaffirmed that an alibi need not be proved by the accused and the burden never shifts. The magistrate's remark that the appellant ought to have called witnesses was 'unfortunate' but, read in context, reflected an evaluation of the defence against the prosecution evidence, not an imposition of the burden of proof.

p. 3
03

Duty of the first appellate court

Holding

The High Court discharged its duty under Okeno v Republic by setting out the case for each side and making its own findings; any misapprehension of the prosecution case did not lead to a wrong conclusion.

Reasoning

The Court held that the learned Judges of the High Court clearly set out the case for each side and made their own findings thereon, satisfying the Okeno duty to re-evaluate the evidence. Although they appeared to misapprehend some portions of the prosecution case, that misapprehension led to no wrong conclusion on fact or law, leaving the conviction sound.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law only.
  • Failure to call the investigating officer is bad practice but does not automatically result in an acquittal; each case turns on its own circumstances.
  • An accused person who raises an alibi bears no burden of proving it, and the burden of proof never shifts to an accused person.

Court orders

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  1. 1.The appellants' appeals against conviction and sentence on the charge of robbery with violence are dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 140
  • Criminal Procedure Codesection 361(1)

Cases cited (4)

  • Bwaneka v Uganda
    [1967] EA 768
  • Karanja v Republic
    [1983] KLR 501
  • Sekitoleko v Uganda
    [1967] EA 531
  • Okeno v Republic
    [1972] EA 32
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 102 of 2004
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code, limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Harward Shikanga Alias Kadogo & another v Republic [2008] KECA 192 (KLR)", Case Analysis (2008). Criminal Appeal 102 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/192/eng@2008-06-27

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