Morris Muthiani Sammy v Republic

The court accepted that there was a variance between the charge and the evidence regarding the date of the robbery, but held that by virtue of section 214(2) of the Criminal Procedure Code, a variance as to the time at which an alleged offence was committed is not material. The court distinguished James Otengo, where the appeal succeeded solely on the first appellate court's failure to re-evaluate the evidence per Okeno v Republic. The date discrepancy alone was therefore not fatal.

Applying its earlier decision in Isaac Nanga Kahiga, the court reiterated that reliance on recent possession requires positive proof that the property was found with the suspect, that it belongs to the complainant, and that it was recently stolen; there must be acceptable evidence of search of the suspect and recovery of the property, and discredited evidence cannot suffice no matter how many witnesses. Here no witness testified to a search and recovery from the appellant, and the handbag was found on the road - a fact neither the trial Magistrate nor the first appellate court considered.

As a second appellate court, the Court of Appeal confined itself to points of law, but on its own evaluation of the evidence on record - including the unconsidered fact that the handbag was recovered from the road and the absence of proof of search and recovery from the appellant - it concluded that the conviction was unsafe. It therefore exercised its power to quash the conviction, set aside the death sentence and order release unless otherwise lawfully held.