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Court of AppealDismissedCriminal Appeal 326 of 2006· [2009] KECA 342 (KLR)

Abdi Shukure Gure v Republic [2009] KECA 342 (KLR)

Court of Appeal of Kenya
15 May 2009
3,186 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed this robbery appeal, confirming convictions where an accused is caught at the scene and clarifying what a valid charge sheet must contain.

What this practically means

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Executive summary

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This was a second appeal by Abdi Shukure Gure against his conviction for robbery with violence under section 296(2) of the Penal Code and grievous harm under section 234, and the sentences of death and life imprisonment respectively. The appellant was arrested at the scene in Garissa after attacking complainants at about 7.30 p.m. in poor lighting, and his slipper, metal bar and rungu were recovered there. Both the Senior Resident Magistrate and the High Court at Meru (Lenaola and Sitati, JJ.) convicted him and dismissed his first appeal. Before the Court of Appeal at Nyeri, counsel raised six grounds: identification, failure to consider the defence, violation of sections 77(2)(b) and (f) of the former Constitution on interpretation, failure of proof, a defective charge sheet lacking time of the offence, and variance between count two and the evidence; the sixth ground was abandoned. The State conceded the appeal on the interpretation point but sought a retrial. The Court, applying section 361(1) of the Criminal Procedure Code confining second appeals to matters of law and the Kaingo and Mwita authorities, rejected the State's concession, held no identification parade was necessary since the appellant was apprehended by the complainants, found his rights were not violated, and held that time need not be stated in a charge sheet. It noted the death sentence on count two had been lawfully rectified by the High Court to life imprisonment. The appeal was dismissed.

Key legal issues

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01

Scope of a second appeal under section 361(1) of the Criminal Procedure Code

Holding

Only matters of law fall for consideration; concurrent findings of fact by the two courts below will not be disturbed unless shown not to be based on evidence

Reasoning

The court invoked section 361(1) of the Criminal Procedure Code and the authorities Kaingo v R and Mwita v R to hold that its jurisdiction on a second appeal is confined to questions of law. Since both courts below made concurrent factual findings that the appellant was arrested at the scene, the Court would not interfere with those findings on the identification ground.

p. 4
02

Identification without a parade where the accused was apprehended at the scene

Holding

Ground of identification fails; where the complainants subdued and handed over the accused at the scene, an identification parade serves no useful purpose

Reasoning

Although the incident occurred at about 7.30 p.m. in poor lighting, the appellant was subdued by the complainants and taken to Garissa Police Station the same evening, and his slipper, metal bar and rungu were recovered at the scene. Recognition by apprehension at the scene made a parade unnecessary.

p. 4
03

Alleged violation of section 77(2)(b) and (f) of the former Constitution on interpretation

Holding

No violation established; a court clerk/interpreter was available throughout and the appellant understood the charges, cross-examined witnesses and gave a clear defence

Reasoning

The trial record showed the charges were read and explained in a language the appellant understood, he pleaded not guilty, there were court clerks/interpreters (Mohamed and Bashir), and he cross-examined witnesses and made an unsworn statement. The Court held the appellant understood and fully participated in the proceedings, rejecting the counsel's concession on this point.

p. 6
04

Defectiveness of a charge not stating the time of the offence

Holding

A charge is not defective for omitting the time of the offence; the Criminal Procedure Code's Second Schedule form for robbery with violence omits time

Reasoning

The Court described the submission as novel and referred to the Second Schedule of the Criminal Procedure Code, which sets out the prescribed form of charges for robbery with violence and does not require a statement of time. Omission of time therefore does not prejudice the accused or vitiate the charge.

p. 6
05

Lawfulness of the death sentence on the grievous harm count

Holding

The death sentence on count two was an error; the maximum for grievous harm under section 234 is life imprisonment, an error rectified by the High Court

Reasoning

The Court noted the trial magistrate's imposition of death on both counts was erroneous because section 234 of the Penal Code caps punishment for grievous harm at life imprisonment. The High Court had already set aside the death sentence on count two and substituted life imprisonment, which this Court affirmed.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal considers only matters of law and will not interfere with concurrent findings of fact of the two courts below unless shown not to be based on evidence
  • No identification parade is necessary where the accused is apprehended at the scene by the complainants and handed over to the police
  • Time of the commission of an offence is not normally stated in a charge sheet; its omission does not render the charge defective
  • The maximum sentence for grievous harm under section 234 of the Penal Code is life imprisonment; death is not a lawful sentence for that offence

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction on the first count of robbery with violence and the sentence confirmed by the superior court stand
On appeal from
High Court of Kenya at Meru
H.C.Cr.A. No. 5 of 2003
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361(1) of the Criminal Procedure Code (Cap 75), limited to matters 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, "Abdi Shukure Gure v Republic [2009] KECA 342 (KLR)", Case Analysis (2009). Criminal Appeal 326 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/342/eng@2009-05-15

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