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Court of AppealPartially AllowedCriminal Appeal 67 of 2007· [2010] KECA 103 (KLR)

1. Erick Ratemo Mwebi 2. Evans Obuya v Republic

Court of Appeal of Kenya
23 September 2010
SBS. E. O. BosirePWP. N. WakiDAD. K. S. Aganyanya
2,765 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 recognition evidence but replaced rape convictions with indecent assault because the charges did not match the evidence.

What this practically means

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Executive summary

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The appellants, convicted by the Principal Magistrate's Court at Nyamira of robbery with violence, rape and related offences arising from an attack on teachers' quarters at N. Secondary School on 23rd September 2003, appealed to the Court of Appeal at Kisumu on a second appeal. Their first appeal to the High Court (Bauni & Warsame, JJ.) had failed on counts 1 to 4 but succeeded on count 5. Before the Court of Appeal, counsel abandoned most original grounds, pressing only that the robbery and rape charges were defective, that the superior court failed to re-evaluate the evidence, and that spermatozoa evidence was not matched to the appellants. The State opposed, stressing recognition of the appellants by the complainants and recovery of stolen property, and warning against disturbing concurrent findings of fact. Holding that under section 361(1)(a) of the Criminal Procedure Code only issues of law arose, the Court found the recognition evidence compelling: the intruders used torches, spent considerable time in each house, and were named to police the same night by witnesses who knew them. The robbery convictions were therefore left intact. On the rape counts, however, the court found a fatal variance: the charges alleged joint rape while the evidence showed rape in turns, which the court held to be the only practicable mode. Invoking section 179 of the Criminal Procedure Code, the court quashed the rape convictions and substituted convictions for indecent assault contrary to section 144 of the Penal Code, passing no further sentence given the death sentences on the robbery counts. The appeals were otherwise dismissed. No costs order was made.

Key legal issues

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01

Sufficiency of recognition evidence on robbery counts

Holding

The court upheld the robbery convictions, finding the witnesses had ample time and lighting (torches) to recognize the appellants, whom they knew before, and named to police the same night.

Reasoning

The victims identified the appellants and named them to police at the AP post on the same night. The robbers used torches whose light enabled recognition. The trial magistrate found the recognition flawless and the High Court affirmed. Being concurrent findings of fact, the second appellate court, confined to matters of law, had no basis to interfere.

p. 5
02

Variance between rape charges alleging joint rape and evidence of rape in turns

Holding

The rape convictions could not stand as pleaded; the court quashed them and substituted convictions for the lesser, cognate offence of indecent assault under section 179 of the Criminal Procedure Code.

Reasoning

The particulars alleged both appellants jointly and indecently assaulted the complainants, but each complainant testified they raped her in turns. The court held joint rape is not practicable, producing a fatal variance. Since the evidence supported the lesser cognate offence of indecent assault under section 144 of the Penal Code, then in force, the court invoked section 179 to substitute that conviction, imposing no fresh sentence given the death sentences on the robbery counts.

p. 5
03

Scope of second appeal - law only

Holding

The court restated that on a second appeal only issues of law arise, and declined to revisit concurrent factual findings of the two courts below.

Reasoning

Counsel's complaints about re-evaluation of evidence and sufficiency of identification were essentially factual. The court invoked section 361(1)(a) of the Criminal Procedure Code to confine itself to matters of law, noting the superior court had affirmed the trial magistrate's findings on recognition.

p. 5

Legal principles established

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  • On a second appeal under section 361(1)(a) of the Criminal Procedure Code, only issues of law fall for consideration by the Court of Appeal.
  • Recognition of an assailant is more reliable than mere identification of a stranger.
  • It is not practicable for two or more people to jointly rape the same woman; where the charge alleges joint rape but the evidence shows rape in turns, there is a variance between charge and evidence.
  • Where evidence supports a lesser and cognate offence, the court may substitute a conviction for that lesser offence under section 179 of the Criminal Procedure Code.

Court orders

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  1. 1.Convictions for rape in the two counts quashed and substituted with a conviction for indecent assault on a female contrary to section 144 of the Penal Code pursuant to section 179 of the Criminal Procedure Code
  2. 2.No sentence passed on the two counts of indecent assault given the pending death sentences on the robbery counts
  3. 3.The appeals otherwise dismissed in their entirety
On appeal from
High Court of Kenya at Kisumu
H.C.Cr.A. No. 339 of 2003
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal on matters of law only

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, "1. Erick Ratemo Mwebi 2. Evans Obuya v Republic", Case Analysis (2010). Criminal Appeal 67 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/103/eng@2010-09-23

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