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Court of AppealPartially AllowedCriminal Appeal No. 98 of 2009

FANUEL OTIENO OMIDO v REPUBLIC [2011] KECA 355 (KLR)

Court of Appeal of Kenya
4 March 2011
4,223 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that proving just one ingredient of robbery with violence is enough for conviction, even without exhibits or proved injuries.

What this practically means

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Executive summary

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This was a second and final appeal against convictions and death sentences imposed by the Senior Resident Magistrate's Court at Kwale for two counts of robbery with violence contrary to section 296(2) of the Penal Code and one count of burglary and stealing, confirmed by the High Court at Mombasa (Sergon, J.) with the death sentence on the second count left in abeyance. The appellant, found at the scene of a gang robbery at Mazeras trading centre on the night of 15th/16th February 2003, raised three grounds: absence of proof of actual violence, non-production of exhibits marked for identification, and unanalysed contradictions in prosecution evidence. The Court of Appeal reaffirmed that proof of any one ingredient of section 296(2) suffices; here the attackers numbered about fifteen, establishing the 'in company with others' ingredient regardless of exhibits or proved injuries. On identification, the appellant admitted presence at the scene, offering shifting defences rejected by both lower courts; under section 361(1) of the Criminal Procedure Code the Court could not disturb those findings of fact. The Court held he was one of the robbers and liable for what they did in furtherance of the robbery. The Court accepted contradictions existed but found the High Court had properly evaluated them. The appeal succeeded only in part: the burglary and stealing conviction was set aside as duplicative of the robbery charges; the robbery convictions and sentences were upheld and the appeal otherwise dismissed.

Key legal issues

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01

Ingredients of robbery with violence under section 296(2)

Holding

Any one of the three ingredients - being armed, being in company with others, or using personal violence - once proved, establishes the offence; it need not be proved that all co-existed.

Reasoning

The court read section 296(2) with section 295 of the Penal Code and reaffirmed Johana Ndungu v Republic. Here the attackers numbered about fifteen, so being in company with one or more persons was established beyond doubt even though exhibits marked for identification were never produced and injuries were not separately proved. Production of exhibits was therefore immaterial.

p. 5
02

Identification of the appellant as one of the robbers

Holding

The appellant admitted presence at the scene, was found there immediately after the robbers fled, and his shifting defences (good Samaritan, search of a medicine man) were disbelieved by both lower courts; the finding of fact could not be disturbed on second appeal.

Reasoning

Under section 361(1) of the Criminal Procedure Code the Court of Appeal cannot interfere with findings of fact unless no reasons whatsoever sustain them. The magistrate carefully analysed the defence and the High Court, after full analysis and evaluation, confirmed that finding. His presence with the robbers at 1.30 a.m. made him one of them, attracting collective liability for the robbery.

p. 6
03

Treatment of contradictions in prosecution evidence

Holding

Contradictions as to whether the appellant had a panga and where he was found were immaterial, as the first appellate court had properly evaluated them and they did not weaken the case.

Reasoning

The Court accepted contradictions existed but held the High Court expressly appreciated and resolved them. Whether the appellant was armed was neither here nor there since he was in company with other robbers, two of whom were killed in the act, and where exactly he was found within the premises did not affect his identification as a participant.

p. 6
04

Duplicate charges of burglary and stealing arising from the robbery

Holding

The burglary and stealing conviction, though proved, ought to have been dismissed as it arose in consequence of the main robbery charges, and the Court set it aside.

Reasoning

The evidence established that the breaking into the premises and theft was part of the same gang robbery; conviction and sentence on the robbery counts adequately covered the conduct. The Court nonetheless exercised its power to set aside the burglary and stealing conviction as duplicative of the robbery counts.

p. 6

Legal principles established

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  • Proof of any one of the ingredients of robbery with violence under section 296(2) of the Penal Code is sufficient for conviction; all ingredients need not be proved.
  • A second appellate court has no jurisdiction to interfere with findings of fact unless it is demonstrated there were no reasons whatsoever to sustain the finding.
  • A person in company with robbers is in law guilty of whatever any of them did in furtherance of the robbery.

Court orders

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  1. 1.Conviction on the burglary and stealing counts set aside and those counts dismissed
  2. 2.Appeal otherwise dismissed; convictions and sentences on the two counts of robbery with violence upheld
On appeal from
High Court of Kenya at Mombasa
H.C.CR. APP. NO. 311 OF 2004
Jurisdiction invoked
Second appeal under section 361 (1) of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "FANUEL OTIENO OMIDO v REPUBLIC [2011] KECA 355 (KLR)", Case Analysis (2011). Criminal Appeal No. 98 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/355/eng@2011-03-04

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