Peter Odhiambo Owino v Republic [2010] KECA 303 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a death sentence for attempted robbery because the charge listed items never proven to exist, but substituted convictions for minor offences.
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 particulars of the charge were at variance with the evidence
- 2.Whether failure to show the language used at trial breached section 77(2)(b) of the Constitution / criminal procedure provisions
- 3.Whether the evidence of identification justified the finding that the appellant committed the offence
- 4.Whether failure to call essential witnesses, especially the person who arrested the appellant, vitiated the conviction
- 5.Whether the trial court's failure to state the section under which it convicted rendered the judgment fatally defective
- 6.Whether, upon quashing the conviction, the appellant should be convicted of minor offences and set at liberty
Key legal issues
#Variance between particulars of the charge and the evidence
The offence of attempted robbery with violence was not proved because no evidence established the items alleged in the charge or that they were capable of being stolen.
The owner of the store and PW1 did not testify as to what was kept in the store. The charge enumerated trophies, medals, uniforms, footballs and other items, but there was no evidence those items existed in the store or were capable of being stolen. Since robbery is an aggravated form of stealing under section 295 of the Penal Code, the offence of attempted robbery with violence under section 297(2) was doubtful.
Language of the trial
The record showed the court addressed the language issue and the complaint lacked merit.
The coram on first presentation of the appellant recorded interpretation in English/Swahili, and the record stated that the substance of the charge was stated to the accused in a language he understands. The appellant cross-examined witnesses and gave evidence, showing he understood the proceedings.
Identification of the appellant
The appellant was caught red-handed after a continuous chase from the locus in quo, so identification was sound.
Witnesses chased the appellant from the scene and never lost sight of him until his arrest near Impala Club. Conditions of identification were ideal, including clear moonlight. The appellant's claim of arrest near a railway line was contradicted by the evidence.
Failure to call essential witnesses
No adverse inference arose because PW1, who participated in the arrest, testified and was believed by both courts below.
An EARS officer who participated in the arrest was not called, but PW1 testified that he arrested the appellant, and both the trial and first appellate courts believed him. The second appellate court's power to interfere is limited to errors of principle or plainly wrong decisions, which was not the case here.
Failure to state the section of conviction in the judgment
Section 215 of the Criminal Procedure Code is directory; non-mention does not vitiate the judgment.
The section guides a subordinate court on how to proceed after trial. Once what the section directs has been done, it suffices. The trial court complied with the requirements, and the superior court did not need to specifically deal with the failure to refer to that section.
Conviction for minor offences under section 179(2) of the Criminal Procedure Code
The facts proved disclosed two minor offences - store breaking and assault causing actual bodily harm - for which the court substituted concurrent sentences already served.
Section 179(2) permits conviction for a minor offence although not charged. The facts disclosed store breaking contrary to section 306 (maximum 7 years) and assault causing actual bodily harm contrary to section 251 (maximum 5 years). Having served about seven years in custody, the appellant had in effect served both terms.
Legal principles established
#- A second appellate court will only interfere with the decision of the lower courts where they erred in principle or the decision is plainly wrong.
- Section 215 of the Criminal Procedure Code is directory; failure of a subordinate court's judgment to state that section does not vitiate the judgment.
- Where particulars of a charge allege specific stolen property, there must be evidence that those things were actually there and were capable of being stolen or robbed.
- Robbery, whether simple or violent, is an aggravated form of stealing under section 295 of the Penal Code.
Court orders
#- 1.The appellant's conviction for attempted robbery with violence contrary to section 297(2) of the Penal Code is quashed
- 2.The sentence of death passed against the appellant is set aside
- 3.The appellant is sentenced to concurrent terms of imprisonment of 7 years and 5 years for store breaking contrary to section 306 and assault causing actual bodily harm contrary to section 251 of the Penal Code respectively
- 4.The appellant is set at liberty forthwith unless otherwise lawfully held, having in effect served both imprisonment terms
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. No. 245 of 2003
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code against conviction and sentence on appeal from the High Court
Relief refused
#Conviction on the alternative minor offences not set aside entirely
The facts proved disclosed two minor offences for which the court substituted convictions and sentences
Costs
No costs order is recorded in the judgment.
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.
Accordingly we quash the appellant's conviction for that offence and set aside the sentence of death passed against him.
In the circumstances, we order that the appellant be and is hereby sentenced to concurrent terms of imprisonment of 7 years and 5 years respectively for store breaking contrary to section 306 and assault causing actual bodily harm contrary to section 251 of the Penal Code, respectively.
it follows that the appellant has in effect served both of his imprisonment terms, and must be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
we can only interfere where the courts below have either erred in principle, i.e. by taking into account extraneous matters in coming to a decision, or it has failed to take into account a relevant factor, in coming to a decision, or that on the material before it, no reasonable tribunal properly directing its mind would have reached such a decision.
The section is directory. It guides a subordinate court on how it should proceed after concluding a trial. It is not essential to state that provision.
Issues in the judgment
#The judgment refers to 'section 77(2) (b) of the Procedure Code' in the grounds of appeal, whereas section 77(2)(b) is a provision of the former Constitution, not the procedure code.
The complainant is named 'Sammy Madeke' in the charge particulars but 'Sammy Mandeka' in the narrative of his evidence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Odhiambo Owino v Republic [2010] KECA 303 (KLR)", Case Analysis (2010). Criminal Appeal No. 291 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/303/eng@2010-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.