Francis Mbijiwe Itere & 5 others v Republic [2013] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal freed five robbery convicts because the identification evidence was weak, but upheld one conviction based on possession of stolen items.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, on a second appeal confined to matters of law, the evidence of identification/recognition supporting the convictions of the 1st, 3rd, 4th, 5th and 6th appellants was of sufficient quality to sustain the concurrent findings of the two courts below
- 2.Whether convictions founded on suspicion following a police swoop, unsupported by tested identification evidence, can stand
- 3.Whether the conviction of the 2nd appellant, based on arrest at the scene and possession of recently stolen items, was supported by overwhelming evidence
Key legal issues
#Quality and testing of evidence of identification and recognition
The evidence of identification of the 1st, 3rd, 4th, 5th and 6th appellants was poor, untested, and based on mere mention of names following a police swoop; the convictions were unsafe and were quashed
The robberies occurred at night, the witnesses gave no descriptions to police, no inquiry was made into the alleged moonlight, and the appellants were arrested in a swoop on the basis of names allegedly given by the 2nd appellant without full particulars. The court applied the warning in Paul Etole & Another v R on the dangers of poor-quality identification evidence and agreed with the State that the convictions rested on suspicion.
Duty of a second appellate court
The court is restricted to matters of law and will not interfere with concurrent findings of fact unless based on a misapprehension of the evidence or on wrong principles
Relying on Chemangong v R and M'Riungu v Republic, the court reaffirmed that where the right of appeal is confined to questions of law, the appellate court must accept findings of fact of lower courts unless no reasonable tribunal could have reached that conclusion. That threshold was not met regarding the 2nd appellant, but was met regarding the other five because no evidential basis for the findings could be found.
Conviction based on possession of recently stolen property and arrest at the scene
The 2nd appellant's conviction was properly founded on his arrest at the scene while fleeing and his possession of items stolen from PW1, coupled with the presumption of fact that he was the thief or a receiver, and his defence was rightly rejected
The police responded immediately to PW3's distress call, shot the 2nd appellant while he fled the compound of PW1, and recovered a bag and other items identified at trial as stolen. Applying Obonyo v R, the court held the presumption of fact applied, the two courts below considered his defence and found it lacking in merit, and the concurrent conclusions were drawn from the totality of the evidence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by two courts below unless based on a misapprehension of the evidence or wrong principles
- Suspicion, however strong, cannot form the basis of a criminal conviction
- Courts must inquire into the nature and quality of available light when assessing evidence of visual identification at night; in the absence of such inquiry, evidence of recognition may not be free from error
- Where a person is found in possession of recently stolen goods and fails to account for their possession, there is a presumption of fact that he is either the thief or a receiver
Court orders
#- 1.Appeal of the 2nd appellant (Joshua Kinyua Manyara) dismissed; conviction and sentence upheld
- 2.Convictions of the 1st, 3rd, 4th, 5th and 6th appellants quashed
- 3.Death sentences of the 1st, 3rd, 4th, 5th and 6th appellants set aside
- 4.The 1st, 3rd, 4th, 5th and 6th appellants to be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Cr. A. No. 74, 75, 76, 77 & 79 of 2006
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the provisions of the Criminal Procedure Code (appeal confined to matters of law)
Relief refused
#Appeal of Joshua Kinyua Manyara (2nd appellant) against conviction and sentence
He was arrested at the scene of robbery in possession of items recently stolen from PW1, and the concurrent findings of the two courts below were based on overwhelming evidence
Costs
No costs order made in the judgment (criminal appeal)
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.
In regard to the appeal by the 1st, 3rd, 4th, 5th and 6th appellants the convictions are quashed and the death sentence is set aside unless otherwise lawfully held, they are to be set at liberty forthwith.
We see no merit in the appeal by the 2nd appellant and it is dismissed.
suspicion alone no matter how strong cannot form the basis of a conviction
In the absence of any inquiry of the sort of lighting, its size, and its position vis a vis each of the appellant, the evidence of recognition may not be free from error.
If a person is found in possession of recently stolen goods and does not account for how he came to be in its possession, there is a presumption of fact that he is either the thief or a receiver.
Issues in the judgment
#The coram lists the third judge as 'ODEK, JJ.A.' but the signature block reads 'J. OTIENO – ODEK'; the same judge appears under slightly different renderings
The judgment refers inconsistently to the same witness as 'Samuel Muiruri Mungai (PW2)' and 'Samuel Mwiruri Mungai (PW2)'
Counsel's submission on Laban Kinoti Ntiritu refers to 'the 5th appellant' in one sentence but the quoted testimony and counsel's urging concern 'the 3rd appellant'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Mbijiwe Itere & 5 others v Republic [2013] KECA 137 (KLR)", Case Analysis (2013). Criminal Appeal No. 230 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/137/eng@2013-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.