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Court of AppealDismissedCriminal Appeal 319 of 2009· [2012] KECA 147 (KLR)

Davis & another v Republic (Criminal Appeal 319 of 2009) [2012] KECA 147 (KLR)

Court of Appeal of Kenya
16 March 2012
EGE. M. GithinjiAVAlnashir VisramHOH. M. Okwengu
1,892 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld death sentences for robbery with violence, ruling a charge need not allege a weapon if wounding and joint action are pleaded.

What this practically means

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Executive summary

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This was a second appeal against conviction and sentence to death for robbery with violence contrary to section 296(2) of the Penal Code, preferred by Hamisi Mbela Davis and David Anyila Kisolo, whose first appeals had been dismissed in their entirety by the High Court at Mombasa (Sergon & Azangalala, JJ.) on 21st October 2008. The appeal arose from the original judgment of the acting Senior Resident Magistrate's court at Taveta following an attack in July 2005 in which the complainant was cut by two panga-wielding assailants and robbed of a bicycle and cash. On second appeal, the Court of Appeal was confined under section 361(1) of the Criminal Procedure Code to matters of law. Counsel compressed the grounds into three issues: the charge was fatally defective; identification was unsafe; and the doctrine of recent possession was wrongly applied. The Court rejected all three. It held that the particulars, alleging joint action by two persons and wounding, disclosed the necessary ingredients of robbery with violence even without an allegation of a weapon. It declined to disturb the concurrent findings that the appellants were recognized by the complainant and his neighbour in daylight after a conversation. Finally, it held that recovery of the complainant's bicycle, stolen about two weeks earlier, from the 2nd appellant's mother's house amounted to constructive possession corroborating the complainant, the defence explanation being unsatisfactory and the alleged pledgor's brother not called. The appeal was dismissed in its entirety.

Key legal issues

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01

Sufficiency of the particulars of the charge

Holding

The charge was proper despite not alleging that the appellants were armed, since the particulars alleged two persons acting jointly and wounding the complainant

Reasoning

Section 296(2) sets out alternative aggravating circumstances, any one of which suffices to graduate robbery to robbery with violence. Here the particulars alleged joint action by two persons and wounding, inferring personal violence. The absence of an allegation of a dangerous weapon did not render the charge fatally defective.

p. 3
02

Identification through recognition

Holding

The concurrent findings that the complainant and Msafiri recognized the appellants, who were known to them, were supported by the evidence and could not be disturbed

Reasoning

The robbery occurred at 5.30 p.m. in daylight, and the complainant and Msafiri had a conversation with the 1st appellant before the attack, affording ample opportunity to see and recognize him. Both subordinate and superior courts made concurrent findings of recognition, which a second appellate court will not disturb. Recognition is more reliable than identification of a stranger.

p. 3
03

Doctrine of recent possession / constructive possession

Holding

Recovery of the bicycle stolen during the robbery about two weeks earlier from the 2nd appellant's mother's house constituted constructive possession, corroborating the complainant's evidence, as the defence explanation was unsatisfactory

Reasoning

The recovery was undisputed and the bicycle was identified as the complainant's. The defence witnesses did not explain when the bicycle was brought to the house, nor was Onyango, to whom it was allegedly pledged, called. In the absence of a reasonable explanation and given the identification evidence, constructive possession was established and the defences were properly rejected.

p. 4

Legal principles established

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  • On a second appeal the Court is confined to issues of law and will not interfere with concurrent findings of fact of the two lower courts unless no reasonable tribunal could have reached that conclusion
  • The ingredients of robbery with violence under section 296(2) may be established by any one of the alternative circumstances, including wounding or use of personal violence by persons acting jointly, even where the charge does not allege possession of a weapon
  • Identification by recognition is more reliable than identification of a stranger

Court orders

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  1. 1.The appeals were rejected in their entirety and the convictions and sentences upheld

Authorities

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Legislation

  • Penal Codesection 296(1)
  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 382

Cases cited (3)

  • M’Riungu vs. Republic
    [1983] KLR 445
  • Martin v Glyneed Distributors Ltd (t/a MBS Fastenings)
  • Anjononi & Others vs. R
    [1980] KLR 59
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 210 of 2005
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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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, "Davis & another v Republic (Criminal Appeal 319 of 2009) [2012] KECA 147 (KLR)", Case Analysis (2012). Criminal Appeal 319 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/147/eng@2012-03-16

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