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Court of AppealPartially AllowedCriminal Appeal 202 of 2006

Geoffrey Lemangara & Another v Republic [2009] KECA 140 (KLR)

Court of Appeal of Kenya
2 October 2009
2,174 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 upheld robbery convictions based on possession of stolen goods but corrected a sentencing error that had imposed an unlawful duplicate death sentence.

What this practically means

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Executive summary

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The two appellants were convicted by a Senior Resident Magistrate at Nyahururu on two counts of robbery with violence contrary to section 296(2) of the Penal Code, arising from the robbery of a shop and two watchmen at Ol-Kalou on 19th November 1999, and were sentenced to death. Their first appeal to the High Court at Nakuru (Muga Apondi and Kimaru, JJ.) was dismissed, conviction and sentence confirmed in a one-line ruling. On second appeal, the Court of Appeal (Omolo, Githinji and Waki, JJA) upheld the convictions. Although the High Court had rightly rejected the watchmen's identification evidence as mere dock identification (no identification parades having been held), the Court found overwhelming evidence that the appellants boarded a matatu with a white sack and two hand-bags shortly after the robbery, were arrested with the stolen items within about two hours, and gave no explanation for their possession. The concurrent findings of fact by the two courts below were therefore not disturbed despite acknowledged misdirections. On sentence, the Court found fault with the trial magistrate's failure to specify whether the death sentence was imposed on one or both counts, an error the High Court had overlooked. The Court set aside the death sentence on count two, leaving the death sentence on count one in place. The appeals against conviction were dismissed; the sentence was varied. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was evidence upon which the two courts below could find that the appellants were arrested in possession of stolen items shortly after the robbery
  2. 2.Whether the evidence of identification by the two watchmen, rejected by the High Court, could sustain the convictions
  3. 3.Whether the concurrent findings of fact by the two courts below should be disturbed on second appeal
  4. 4.Whether the death sentence imposed on both counts, without specification by the trial magistrate, was proper

Key legal issues

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01

Sufficiency of evidence of possession of recently stolen property

Holding

The evidence of the matatu driver and the arresting officer established that the appellants boarded the vehicle with the stolen items and offered no explanation for their possession, sustaining conviction despite misdirections by the lower courts.

Reasoning

The driver saw the white sack and two hand-bags when the appellants boarded at the bridge; no other passenger entered thereafter; the vehicle was stopped five minutes later and the appellants pointed out with the luggage. The stolen goods were taken within about two hours of the robbery. Although both courts misdirected themselves on some aspects, a reasonable tribunal properly directing itself could reach the conclusion of guilty possession.

p. 3
02

Dock identification

Holding

The High Court was right to reject the watchmen's identification evidence, which remained mere dock identification since no identification parades were held; such evidence is not wholly worthless but could not sustain conviction here.

Reasoning

The watchmen did not know the appellants before, and for unexplained reasons the police did not hold identification parades. The identification evidence therefore remained dock identification only. The High Court rejected it and this Court saw no basis to interfere with that rejection.

p. 2
03

Sentence on multiple counts

Holding

The trial magistrate's failure to specify whether the death sentence was imposed on one or both counts was an error; this Court set aside the death sentence on count two, leaving the death sentence on count one.

Reasoning

The magistrate imposed the death sentence without specifying the count or counts on which it was imposed, and the High Court saw nothing wrong with that manner of sentencing. This Court intervened, setting aside the sentence on count two to leave a single lawful sentence of death.

p. 3

Legal principles established

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  • Evidence of dock identification is not wholly worthless.
  • On a second appeal the Court of Appeal will not interfere with concurrent findings of fact by the two courts below unless there was no evidence upon which those findings could be based.
  • A trial court that convicts on multiple counts must specify the count or counts on which each sentence is imposed; where it does not, an appellate court may set aside the sentence on one count.

Court orders

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  1. 1.Appeals against conviction on each of the two counts dismissed
  2. 2.Sentence of death imposed on count two set aside, leaving the sentence of death on count one
  3. 3.Appeals otherwise dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. Nos. 181 & 225 of 2002
Jurisdiction invoked
First appellate jurisdiction under the Criminal Procedure Code (second appeal to the Court of Appeal from the High Court on appeal from the Senior Resident Magistrate's court)

Relief refused

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Appeal against conviction on both counts of robbery with violence

There was overwhelming evidence the appellants boarded the matatu carrying the stolen items shortly after the robbery and offered no explanation for possession; concurrent findings of fact were not disturbed despite misdirections

p. 3

Costs

No costs order recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Their appeals against their conviction on each of the two counts accordingly fail and we order them dismissed. On sentence, we set aside the sentence of death imposed on count two leaving only the sentence of death imposed on count one. Those shall be our orders in the appeals.
p. 3Final orders - dismissal of conviction appeals and variation of sentence
not only was there evidence, but in fact there was overwhelming evidence that the two appellants boarded the vehicle of James at the bridge and that at the time they so boarded the vehicle, they had with them the white sack and the two hand-bags
p. 3Sufficiency of evidence of possession of recently stolen property
There was clearly evidence which a reasonable tribunal, properly directing itself, could come to that conclusion.
p. 3Concurrent findings of fact on second appeal
The evidence of the two watchmen with regard to the identification of the appellants remained merely that of dock identification
p. 2Dock identification

Issues in the judgment

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minor

The coram heading names the High Court judges as 'Apondi & Kimani, JJ.' while the body of the judgment refers to 'Muga Apondi and Kimaru, JJ.' - an internal inconsistency in the name of the second High Court judge.

minor

The judgment makes no costs order and contains no disposition heading; the final orders are stated within the concluding narrative paragraph.

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, "Geoffrey Lemangara & Another v Republic [2009] KECA 140 (KLR)", Case Analysis (2009). Criminal Appeal 202 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/140/eng@2009-10-02

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