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Court of AppealDismissedCriminal Appeal 319 of 2007· [2009] KECA 15 (KLR)

Samwel Kamau Mungai & 2 others v Republic

Court of Appeal of Kenya
20 November 2009
ROR. S. C. OmoloEGE. M. GithinjiAVAlnashir Visram
1,933 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed three robbery convictions, ruling it cannot overturn factual findings of two lower courts, only points of law.

What this practically means

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Executive summary

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This is a second and final appeal before the Court of Appeal at Nairobi against the dismissal of the appellants' first appeals by the High Court (Lesiit & Makhandia, JJ.), which had upheld their convictions by the Chief Magistrate's Court at Thika for robbery with violence contrary to section 296(2) of the Penal Code. The appellants were said to have robbed the complainant and his passenger of cash and personal items at a bus stage along the Thika-Kenol Highway in broad daylight. On this second appeal, only points of law fell for consideration under section 361(1) of the Criminal Procedure Code. Counsel raised issues of identification, the language of the trial court, the doctrine of recent possession, a defective charge, and (later abandoned) a violation of section 72(2) of the Constitution. The Court of Appeal, in a single judgment of the court delivered by Omolo, Githinji and Visram, JJA, rejected all grounds. It held that there were concurrent findings by the two courts below that the appellants were properly identified and recognized, which it declined to disturb after re-examining the evidence. The language of the court was properly recorded as English-Kiswahili-Kikuyu; the doctrine of recent possession was not relied on below; and the minor inconsistency in the amount stated in the charge was curable under section 382 of the Criminal Procedure Code. The Court was satisfied that the offence was proved beyond reasonable doubt and dismissed the appeals.

Key legal issues

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01

Identification and recognition evidence on second appeal

Holding

The Court declined to disturb the concurrent findings of the two courts below that the appellants were properly identified, finding the evidence of recognition by PW3 and visual identification by PW1 to be well founded.

Reasoning

As a second appeal, the Court only entertains points of law and will not disturb concurrent factual findings unless shown to be ill-founded. It re-examined the evidence and confirmed that PW3 knew all three appellants and reported their names to the police on the same day; PW1 identified the 1st and 3rd appellants in an identification parade. The robbery occurred in broad daylight and the identification was corroborated and uncontroverted.

p. 4
02

Language of the trial court

Holding

The ground that the language of the court was not stated failed; the record properly recorded English-Kiswahili-Kikuyu and the appellants exercised their choice of language.

Reasoning

The Court examined the trial record and was satisfied that the language used was properly recorded and that the appellants were given, and did in fact exercise, their choice of the language used in court.

p. 4
03

Doctrine of recent possession

Holding

The argument failed because neither court below relied on the doctrine as the basis of conviction, and in any event the recovered items were identified by the complainants.

Reasoning

The Court held the argument had no merit on two grounds: neither of the courts below relied on the doctrine of recent possession as the basis of conviction; and the belt and jacket were recovered by PW5 and identified by the complainants as belonging to them.

p. 5
04

Defect in the charge (inconsistency in amounts)

Holding

The inconsistency between the amount stated in the charge and the evidence was minor and curable under section 382 of the Criminal Procedure Code.

Reasoning

The Court concurred with the superior court's finding that the inconsistency in the amount of money quoted in the charge was minor, of no effect, and curable under section 382 of the Criminal Procedure Code, and therefore the conviction was not vitiated.

p. 5

Legal principles established

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  • On a second appeal, only points of law fall for consideration by the Court of Appeal, and it will not disturb concurrent findings of fact by the two courts below unless shown to be unfounded.
  • Recognition of an assailant is more reliable than identification of a stranger because it depends on personal knowledge of the assailant.

Court orders

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  1. 1.The appeals of all three appellants be and are hereby dismissed
On appeal from
High Court of Kenya at Nairobi (Lesiit & Makhandia, JJ.)
H.C. CR. A. No. 202, 205 & 207 of 2002
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on points of law)

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, "Samwel Kamau Mungai & 2 others v Republic", Case Analysis (2009). Criminal Appeal 319 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/15/eng@2009-11-20

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