Abdi Chege Ali & another v Republic [2012] KECA 255 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed two robbery convictions, ruling that identification during a chase, an unrecorded trial language, and fewer witnesses were not fatal flaws.
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 appellants were properly identified as the perpetrators of the robbery despite the alleged loss of sight during the chase
- 2.Whether the failure to dust the imitative pistol for fingerprints undermined the finding of possession
- 3.Whether the failure to record the language of the trial breached Section 198(4) of the Criminal Procedure Code and Section 77(2)(b) of the retired Constitution, rendering the trial a nullity
- 4.Whether the failure to call the Councilor and other essential witnesses was fatal to the prosecution case
- 5.Whether the first appellate court failed to re-evaluate and analyse the matters raised in the petition of appeal
Key legal issues
#Identification through a continuous chase
The complainant had ample opportunity to observe the appellants before and during the attack, and the uninterrupted chase and immediate identification made the identification reliable, distinguishing the Mangira case
The offence occurred in daylight with only three attackers present; the complainant observed them before, during and after the attack, and the chase was continuous and joined by other witnesses whose evidence confirmed the complainant's identification. The Court distinguished Jared Ochieng Mangira v Republic, where identification was mere dock identification and the complainant had left the chase.
Failure to lift fingerprints from the imitative pistol
The complaint was a matter of fact outside second-appeal jurisdiction, and in any event immaterial because the pistol had been handled by many people
Under Section 361 of the Criminal Procedure Code the point was one of fact not open on second appeal. Further, since the pistol was picked up and handled by members of the public before reaching police, fingerprints would not have established who handled it first.
Non-recording of trial language
Although the failure to record language is a sad omission, the constitutional and statutory requirement is not breached where the record shows the accused understood the proceedings
The Court noted the clerk shared the appellants' ethnic background, that they cross-examined witnesses effectively and gave lengthy coordinated unsworn statements, all showing comprehension. The provision does not specifically require the language to be recorded, though recording it should always be the practice.
Non-call of essential witnesses
Failure to call the Councilor was not fatal as two members of the public testified and Section 143 of the Evidence Act does not require superfluity of witnesses
The evidence needed to prove the prosecution case was before the court through PW2 and PW3; the Councilor's testimony was not indispensable. The Court applied Section 143 of the Evidence Act on the number of witnesses.
Legal principles established
#- On a second appeal under Section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal considers only matters of law, subject to the exceptions where the lower courts considered what they should not have or failed to consider what they should have
- Failure to record the language of a criminal trial in the proceedings is a serious omission and should always be the practice, but it is not an automatic nullity where the record otherwise shows the accused understood the language
- Under Section 143 of the Evidence Act, there is no requirement to call a superfluity of witnesses; the number called need only be sufficient to prove the case
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A. Nos. 157-158 of 2002
- Jurisdiction invoked
- Second appeal under Section 361(1)(a) of the Criminal Procedure Code, confined to matters of law
Relief refused
#Conviction and sentence set aside on grounds of misidentification, untested fingerprint evidence, language irregularity and non-call of essential witnesses
The Court found the identification reliable, the fingerprint complaint immaterial, the language requirement substantially complied with, and the witnesses called sufficient
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.
By dint of the provisions of Section 361(1) (a) of the Criminal Procedure Code, only matters of law would be considered at this stage unless it be demonstrated that the first appellate court and the trial court failed to consider what they should have considered or that they considered what they should not have considered or that looking at the entire case, the decision is untenable.
if it appears from the record that the accused at the trial fully understood the language in which the trial was conducted and there is no doubt on that, then though the trial court may not have specifically written down that language, the requirements of the constitution and of Section 198(4) of the Criminal Procedure Code cannot be said to have been breached.
the provisions of Section 143 of the Evidence Act are clear that superfluity of witnesses is not necessary.
We have said enough to show that in our view, this appeal cannot succeed. It is dismissed.
Issues in the judgment
#The judgment refers to the cited authority inconsistently as 'MANGIRA case (supra)' while its full name is 'JARED OCHIENG MANGIRA vs REPUBLIC' and is dated (2011) eKLR despite this being an appeal from a 2006 High Court judgment decided on 23 February 2012; the citation year is internally plausible but the shorthand spelling differs within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdi Chege Ali & another v Republic [2012] KECA 255 (KLR)", Case Analysis (2012). Criminal Appeal No. 135 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/255/eng@2012-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.