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Court of AppealPartially AllowedCriminal Appeal 14 of 2005· [2008] KECA 313 (KLR)

Kennedy Maina v Republic

Court of Appeal of Kenya
22 February 2008
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireJAJ. Aluoch
2,491 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a robbery convict because witnesses never described the lighting during a night identification, and tracker dog evidence lacked foundation.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Tunoi, Bosire and Aluoch, JJA) allowed a second appeal in part, quashing the appellant's conviction for robbery with violence and attempted robbery with violence contrary to sections 296(2) and 297(2) of the Penal Code, and setting aside the death sentences imposed by the Senior Principal Magistrate at Naivasha and upheld on first appeal by the High Court (Musinga and Kimaru, JJ). The court first rejected the appellant's complaint that the charges were defective for omitting the time of the offence, holding that time is not an essential element of robbery with violence and that the charges followed the prescribed standard form in the 2nd Schedule to the Criminal Procedure Code; the Bungoma High Court decision in Munyasi, relied on by the appellant, was distinguished as concerning burglary where time is essential. On the principal ground, the court found the identification evidence insufficient: five identifying witnesses never described the intensity or nature of the lighting at the night-time robberies, and both courts below dealt with identification perfunctorily, contrary to R v Turnbull. The court further held that tracker dog evidence is opinion evidence admissible only where a proper foundation as to the dog's training and reliability is laid and where corroborated; the handler's evidence here was worthless. Finally, the court deprecated concurrent death sentences on two counts, observing that a person cannot hang more than once. The appellant was ordered set at liberty forthwith unless otherwise lawfully held.

Key legal issues

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01

Framing of robbery charges without stating the time of the offence

Holding

The omission of the time from the particulars of a robbery with violence charge is not fatal, because time is not an essential element of that offence; the prescribed standard form requires only the date.

Reasoning

The court contrasted burglary, where time is essential because it distinguishes burglary from housebreaking, with robbery, whose standard form in the 2nd Schedule to the Criminal Procedure Code requires only the date. The drafters of the appellant's charges followed that prescribed format, and it would be absurd to fault them. The Bungoma High Court decision in Munyasi, relied on by the appellant, was distinguishable because it concerned burglary.

p. 2
02

Sufficiency of visual identification evidence at night

Holding

The identification evidence was insufficient to sustain the conviction because neither the trial court nor the first appellate court considered the intensity or nature of the light at the scene, as required by the authorities on identification.

Reasoning

Five witnesses identified the appellant but none described the type, quality or intensity of the lighting; they only said 'lights were on' or 'there was light'. Both courts below dealt with identification perfunctorily. Where the offence is committed at night, the intensity of the light is an important factor under R v Turnbull, and failure to advert to it rendered the identification evidence insufficient to support a conviction on a capital charge.

p. 3
03

Evidential value of tracker dog evidence

Holding

Tracker dog evidence is admissible only in certain circumstances, is opinion evidence requiring a proper foundation as to the dog's training and reliability, and requires corroboration; the dog handler's evidence in this case was worthless.

Reasoning

Drawing on Abdallah bin Wendo, Omondi v R and David Njeru Kibuthu, the court held that tracker dog evidence must be preceded by inquiry into the dog's training and antecedents and its reliability, and must be corroborated. The dog handler in this case gave no evidence of the dog's training or track record, so his evidence advanced the prosecution case not at all and could not sustain the conviction.

p. 4
04

Lawfulness of concurrent death sentences on multiple counts

Holding

It is inconceivable that two or more sentences of death can run concurrently; the proper approach is to sentence on the first count and either hold any other sentence in abeyance or not sentence at all on further counts.

Reasoning

The trial magistrate sentenced the appellant to death on each of two counts to run concurrently. The court noted the superior court on first appeal failed to notice this anomaly. While the conviction itself was quashed on the identification and tracker dog grounds, the court flagged for the guidance of lower courts the correct approach to multiple capital sentences.

p. 4

Legal principles established

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  • Evidence of a tracker dog is in the nature of opinion evidence and is worthless unless a proper foundation is laid for its admissibility, including evidence of the dog's training and reliability, and it requires corroboration.
  • In cases of visual identification, especially at night, the intensity and nature of the light at the scene is an important factor which courts must consider and make findings on.
  • A person cannot be sentenced to death on two or more counts running concurrently; the proper approach is to impose the death sentence on the first count and place any other sentence in abeyance or impose none at all.
  • The omission of the time of the offence from the particulars of a charge of robbery with violence is not fatal where the standard form of charge in the Criminal Procedure Code does not require it.

Court orders

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  1. 1.The complaint on the framing of the charges (omission of time) dismissed as without merit
  2. 2.The appellant's conviction on robbery with violence and attempted robbery with violence quashed
  3. 3.The sentence of death imposed on each count set aside
  4. 4.The appellant set at liberty forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Nakuru
H.C. Cr. A. No. 292 of 2001
Jurisdiction invoked
Second appeal to the Court of Appeal on points of law under the Criminal Procedure Code (Cap 75)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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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, "Kennedy Maina v Republic", Case Analysis (2008). Criminal Appeal 14 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/313/eng@2008-02-22

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