BERNARD OMUNDA MARICHUADA & 2 OTHERS v REPUBLIC [2009] KECA 206 (KLR)
The bottom line
#Kenya's Court of Appeal quashed the rape and one murder-related conviction for defective charges, but upheld the robbery convictions based on identification and recently stolen property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the evidence of identification was sufficient to sustain the convictions despite difficult conditions
- 2.Whether the convictions could rest on the doctrine of recent possession of stolen property
- 3.Whether the trial court erred in accepting the evidence of a 14-year-old witness on oath
- 4.Whether the first appellate court failed in its duty to re-evaluate and analyse the evidence
- 5.Whether the charge sheet was defective and whether the language used at trial occasioned a failure of justice
Key legal issues
#Scope of a second appeal under section 361 of the Criminal Procedure Code
Only matters of law fall for consideration; the Court will not interfere with concurrent findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles
Relying on Chemagong v R, Kaingo v R, Kiarie v R and Reuben Karari, the Court reaffirmed that a second appeal is confined to points of law. Not every misdirection or non-direction entitles an appellate court to upset a finding of fact; errors must be such that the outcome would have been different. The concurrent findings on identification and recent possession were supported by evidence and so stood.
Identification by a single witness under difficult conditions
The trial magistrate applied the correct approach, examining the circumstances of each identification, and the two courts were entitled to find the appellants properly identified
Applying Abdulla bin Wendo and Turnbull, the Court noted the trial magistrate expressly considered the lighting, duration of observation and other identification circumstances, and the evidence was that the house was brightly lit. The High Court confirmed this approach. The Court was therefore unable to fault the concurrent findings, notwithstanding the conditions of the robbery.
Recent possession of stolen property
The appellants and their co-accused were found in joint possession of property stolen less than 24 hours earlier, gave no acceptable explanation, and the courts below were entitled to infer guilt
Following Andrea Obonyo v R, the presumption from recent possession is an application of the circumstantial evidence rule. The appellants were found in a house celebrating with most of the stolen items; their explanations were rejected by both courts below. The Court held the two courts were entitled to conclude the appellants had participated in the robberies.
Evidence of a 14-year-old witness on oath
The trial magistrate, who saw the witness, was entitled to find her sufficiently intelligent to testify on oath; a witness said to be fourteen is not under fourteen
Relying on Kibangeny arap Kolil and Nyasani s/o Bichan, the Court noted there is no statutory definition of 'child of tender years' and whether a child is of tender years is a matter for the good sense of the court. PW4 was fourteen, not under fourteen, and the trial magistrate found her intelligent; the Court could not fault the receipt of her evidence on oath.
Duty of the first appellate court to re-evaluate evidence
Although the first appellate court did not properly re-evaluate the evidence, it considered the salient points and reached the same conclusion, so the appeal on that ground failed
Restating the Okeno v R principle, the Court accepted that the first appellate court fell short of full re-evaluation. However, it considered the salient points raised and concurred with the trial magistrate on identification and recent possession. The Court noted that even in Okeno itself the appeal was dismissed despite the first appellate court's default, and applied the same course here.
Defectiveness of the rape counts
The rape counts, framed as charging persons 'jointly' raping a victim, were defective and could not be sustained; the State conceded the appeal on those counts
The Court held that charges under section 140 of the Penal Code alleging joint rape were bad in law since two or more persons cannot 'jointly' rape a victim as framed. The State conceded, and the convictions and sentences on counts 6 and 7 were quashed and set aside.
Legal principles established
#- A second appeal is confined to matters of law and the Court will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles
- Evidence of a single identifying witness requires the greatest care where identification conditions were difficult, and needs other supporting evidence before a conviction can safely rest on it
- The presumption from possession of recently stolen property is an application of the circumstantial evidence rule: the inculpatory facts must be incompatible with innocence and incapable of explanation on any other reasonable hypothesis
- It is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions
- There can be no charge of two or more people jointly raping a victim; a count framed in such terms is defective
- A death sentence should be imposed on only one count, leaving sentences on other counts in abeyance
Court orders
#- 1.Appeal allowed in respect of counts 6 and 7 (rape): convictions and sentences quashed and set aside
- 2.Conviction in count 4 quashed and sentence of death set aside for want of evidence, the complainant not having testified
- 3.Appellants to be sentenced to death only on one count (the second count), leaving the sentence on count 3 in abeyance
- 4.Convictions on counts 2 and 3 upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. Nos. 243, 245 & 247 of 1997
- Jurisdiction invoked
- Second and final appeal under section 361 of the Criminal Procedure Code
Relief refused
#Setting aside the convictions on counts 2 and 3 (robbery with violence)
Concurrent findings on identification and recent possession were supported by sound evidence; the trial court had the correct approach on identification
Appellate relief on the ground of a defective charge sheet
Particulars alleged arming with pistols, knives and pangas and use of violence; the ground lacked substance
Appellate relief on the language-of-trial ground
The record showed English/Swahili interpretation and the appellants addressed the magistrate in Swahili and fully participated in the trial
Costs
No order as to costs is recorded in the judgment; being a criminal appeal, none was made.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For avoidance of doubt, the convictions on counts 4, 6 and 7 are quashed and the sentences imposed thereon set aside.
We order that the appellants will be sentenced to death only on one count (second count) leaving the sentence on count 3 in abeyance.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
There can be no question of two or more people "jointly raping a victim."
it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld
the proper approach is to impose a death sentence only on one count leaving the sentences on other counts in abeyance
Issues in the judgment
#The judgment's own recitals ascribe the High Court judgment to Mbogholi & Mbito, JJ., but later state the appeal was heard by Msagha and Mbito, JJ., without reconciling the differing bench compositions
The judgment inconsistently renders the 1st appellant's name, appearing variously as Bernard Omunda Marichuada, Bernard Omunda Marijuana and Bernard Omondi Marichuada
Counsel's submissions are recorded as addressing 'counts 5 and 7 (the counts relating to rape)' whereas the judgment elsewhere identifies the rape counts as counts 6 and 7
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BERNARD OMUNDA MARICHUADA & 2 OTHERS v REPUBLIC [2009] KECA 206 (KLR)", Case Analysis (2009). Criminal Appeal 259 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/206/eng@2009-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.