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Court of AppealDismissedCriminal Appeal 320 of 2006· [2009] KECA 343 (KLR)

Samuel Karani v Republic [2009] KECA 343 (KLR)

Court of Appeal of Kenya
15 May 2009
ROR.S.C. OmoloEGE.M. GithinjiAVAlnashir Visram
3,087 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery conviction, ruling a missing charge sheet caused no prejudice but tracker dog evidence alone cannot sustain a conviction.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Omolo, Githinji and Visram, JJA) dismissed a second appeal by Samuel Karani against his conviction on two counts of robbery with violence contrary to section 296(2) of the Penal Code and the death sentence imposed by the Senior Resident Magistrate's Court at Nkubu, which the High Court at Meru (Lenaola and Sitati, JJ) had affirmed on first appeal. The convictions rested on the recognition of the appellant by Beatrice, one of the robbery victims, tracker dog evidence, and a fresh head injury on the appellant at his arrest near the scene. The appellant argued first that the loss of the original charge sheet denied him a fair trial under section 77 of the Constitution. The Court held that pleas were properly taken, the subordinate court's judgment contained the substance of the charges, and there was substantial compliance with rule 61(4) of the Court of Appeal Rules, causing no prejudice. On identification, the Court reaffirmed that on a second appeal it will not lightly disturb concurrent findings of fact of the two lower courts, and found Beatrice had multiple opportunities, aided by torchlight and moonlight, to recognize a man she had known for three years. The Court cautioned that tracker dog evidence must be supported by proof of the dog's training and reliability, which was lacking here, so the tracking alone could not sustain the conviction; however, the appellant's unexplained head injury and the circumstances of his arrest corroborated the identifying witness. The appeal was accordingly dismissed.

Key legal issues

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01

Missing charge sheet and fair trial under section 77 of the Constitution

Holding

Ground 4 rejected: the record showed a charge sheet existed, pleas were taken, the subordinate court's judgment contained the substance of the charges, and there was substantial compliance with rule 61(4) with no prejudice to the appellant.

Reasoning

Section 134 of the Criminal Procedure Code requires the offence to be specified on the charge, which was complied with. The Code does not require the charge sheet to be in the first appeal file; rule 61(4) as read with rule 61(2) requires it in a record of appeal to this Court, but the judgment containing the substance of the charges was incorporated. Fair-trial guarantees under section 77 were observed at trial, so the absence of the copy caused no prejudice.

p. 4
02

Identification evidence on second appeal

Holding

The concurrent findings of the two lower courts that Beatrice recognized the appellant with the aid of torchlight and moonlight were not disturbed.

Reasoning

The trial magistrate appreciated the difficult conditions of identification yet believed Beatrice, who had known the appellant for three years and had four opportunities to identify him; the superior court made the same finding. Both courts rejected the identification evidence of the other complainants. The Court found no reason to interfere with these concurrent findings on its own analysis of the evidence.

p. 4
03

Tracker dog evidence

Holding

The dog-tracking evidence could not safely support conviction because the handler gave no evidence of the dog's training and reliability.

Reasoning

Counsel correctly submitted no basis was laid on the dog's training and ability to track accurately. The handler with 13 years' experience did not testify to the training and reliability of the dog, so it could not be safely concluded that the appellant was one of the robbers merely because the scent led to his house. The Court nonetheless noted the onerous nature of the Abdalla Bin Wendo test.

p. 5
04

Corroboration from circumstances of arrest

Holding

The appellant's arrest 300 metres from the scene about an hour later, with a fresh head injury he could not explain, corroborated Beatrice's recognition evidence.

Reasoning

Consistent evidence showed a robber was cut on the head with a panga during the robbery and Beatrice saw the appellant bleeding from the head. The appellant was arrested shortly afterwards near the scene with bloodstained clothes and did not explain the injury in his defence. These circumstances corroborated the identification evidence and justified upholding the conviction.

p. 5

Legal principles established

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  • A second appellate court will not lightly interfere with concurrent findings of fact of the trial and first appellate courts unless no reasonable tribunal would have reached those findings or there were errors of law.
  • Tracker dog tracking evidence must be received with caution and must be accompanied by evidence of the dog's training, reliability and tracking ability, including from the handler.
  • A dog handler is competent to testify on the tracking ability and reliability of the dog even if not on its training.
  • The absence of the charge sheet from a record of appeal does not, of itself, render the trial unfair where the substance of the charge appears in the record and no prejudice is shown.

Court orders

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  1. 1.Appeal dismissed; conviction and sentence upheld

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Constitution of Kenyasection 77(2)
  • Constitution of Kenyasection 77
  • Criminal Procedure Codesection 134
  • Criminal Procedure Codesection 350(1)
  • Criminal Procedure Codesection 350(2)
  • Court of Appeal RulesRule 61(4)
  • Court of Appeal RulesRule 61(2)

Cases cited (5)

  • MWITA V. REPUBLIC
    [2004] 2 KLR 60
  • BURU V REPUBLIC
    [2005] 2 KLR 533
  • ABDALLA BIN WENDO AND ANOTHER VS. R
    (1953) 20 EACA 166
  • OMONDI V. R
    [1967] E.A. 802
  • KENNEDY MAINA VS. REPUBLIC
    Criminal Appeal No. 14 of 2005 (Nakuru)
On appeal from
High Court of Kenya at Meru
H.C.CR.A. NO. 237 OF 2000
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code from the High Court's appellate decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Samuel Karani v Republic [2009] KECA 343 (KLR)", Case Analysis (2009). Criminal Appeal 320 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/343/eng@2009-05-15

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