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Court of AppealDismissedCriminal Appeal 124 of 2005· [2008] KECA 314 (KLR)

Benard Akusimba Keya v Republic [2008] KECA 314 (KLR)

Court of Appeal of Kenya
22 February 2008
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireJAJ. Aluoch
1,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that strong identification evidence, a properly admitted confession, and stolen items found in your home can sustain a robbery conviction.

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) dismissed a second appeal by Benard Akusimba Keya against convictions on two counts of robbery with violence contrary to section 296(2) of the Penal Code, for which he was sentenced to death, and concurrent convictions for possession of a firearm and ammunition. The appellant had been convicted by the Chief Magistrate's Court at Nakuru, and the High Court (Musinga and Kimaru, JJ) dismissed his first appeal on 17 December 2004. The court framed three issues: positive identification, the doctrine of recent possession, and the admissibility of a retracted charge and cautionary statement. On identification, the court held the attack occurred in an area well lit by electric lights and the witnesses identified the appellant at an identification parade without difficulty. On the confession, the court found the statement detailed and properly admitted after a trial within a trial, and capable of reliance when the record was considered as a whole. On recent possession, the stolen revolver and ammunition were recovered about twenty days after the robbery from a sack under the bed in the appellant's own dwelling; having no Firearms Certificate and offering no explanation, the doctrine properly applied. The court also held that mere possession of a firearm is a distinct offence regardless of how possession was acquired, so the firearm counts were properly joined with the robbery counts. The court affirmed the first appellate court's judgment, upheld the convictions and sentences, and dismissed the appeal in its entirety. It also issued a practice point that a judgment of two High Court judges in a criminal appeal should not be styled a 'Judgment of the Court'.

Key legal issues

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01

Positive identification in criminal trials

Holding

Where the attack took place in an area well lit by electric lights and the witnesses identified the appellant without difficulty at an identification parade, there was no mistake as to identity and the concurrent findings of the two lower courts stood

Reasoning

The court re-evaluated the evidence and was satisfied that PW2 and PW3, attacked only four steps from the lit verandah of Mombasa Butchery, could clearly identify the appellant, whom they picked out at an identification parade. The first appellate court had likewise re-evaluated the evidence, so the second appellate court would not disturb those concurrent findings of fact.

p. 3
02

Admissibility of a retracted charge and cautionary statement

Holding

The statement, detailed and given after a properly conducted trial within a trial, was correctly admitted and could be considered together with the whole record

Reasoning

The appellant retracted and repudiated his charge and cautionary statement, necessitating a trial within a trial. The court observed that the statement was detailed, suggesting it was made by a person who knew exactly what happened, and that considering the record of the trial as a whole, the statement was properly admitted in evidence and could found conviction alongside other evidence.

p. 3
03

Doctrine of recent possession

Holding

Recovery of the stolen revolver and ammunition from the appellant's own dwelling about twenty days after the robbery, with no Firearms Certificate and no explanation, amounted to recent possession connecting him to the offence

Reasoning

The prosecution led clear and detailed evidence of recovery of the revolver and other stolen articles from a sack under the bed in the appellant's house, which he admitted was his dwelling. Having no lawful entitlement to possess the firearm and offering no explanation, the inference of recent possession of stolen property properly connected him to the robbery.

p. 3
04

Joinder of firearm possession counts with robbery counts

Holding

It was immaterial that a stolen firearm could not lawfully be licensed; mere possession is a distinct offence, so the counts were properly joined

Reasoning

The appellant contended it was impracticable to obtain a Firearms Certificate for a stolen firearm, implying the firearm counts could not stand alongside the robbery counts. The court rejected this, holding that mere possession of a firearm is a distinct offence regardless of how possession was acquired, and thus the joinder was proper.

p. 3

Legal principles established

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  • In criminal appeals heard by two judges of the High Court, the judgment should not be styled a 'Judgment of the Court'
  • Possession of a firearm is a distinct offence regardless of how the possessor came to possess it, so such counts may be properly joined with robbery counts even where the firearm was stolen
  • A detailed retracted charge and cautionary statement, admitted after a trial within a trial, may be relied on together with the record as a whole to sustain a conviction

Court orders

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  1. 1.The convictions and sentences imposed by the trial court, as upheld by the High Court on first appeal, are upheld
  2. 2.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 215
  • Firearms Act(provisions on Firearms Certificates and possession of firearm and ammunition)

Cases cited (1)

  • Paul Mwangi Murunga v R
    No. 35 of 2006 (Nakuru) unreported
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. NO. 277 OF 2001
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (criminal appeal as of right from a first appeal decided by the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Benard Akusimba Keya v Republic [2008] KECA 314 (KLR)", Case Analysis (2008). Criminal Appeal 124 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/314/eng@2008-02-22

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