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Court of AppealDismissedCriminal Appeal 188 of 2011· [2013] KECA 365 (KLR)

David Parseen Yiale v Republic [2013] KECA 365 (KLR)

Court of Appeal of Kenya
24 January 2013
EGE. M. GithinjiWKW. KaranjaDavid Kenani MaragaD. K. Maraga
1,531 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery-with-violence conviction, ruling that stolen items need not be recovered and late new explanations will be rejected.

What this practically means

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Executive summary

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The appellant was convicted by the Resident Magistrate's Court at Mombasa of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, for attacking the complainant, Alex Ole Teipan, with a hammer in his office on 21st June 2006 and robbing him of a mobile phone, wallet, identity card, credit cards and cash. The High Court at Mombasa (Ojwang & Odero, JJ) dismissed his first appeal on 7th June 2011, holding that the assault was in furtherance of robbery. On second appeal, the appellant, through Mr. Bryant, conceded the assault but contended that theft of the specified items - an essential element of robbery with violence - was not proved, relying on initial police reports of assault or attempted murder and on witnesses who found the complainant talking on his phone after the attack. The State, through Mr. Muteti, submitted that colleagues who made the initial reports could only describe what they observed while the complainant was hospitalised. The Court of Appeal (Githinji, Karanja and Maraga, JJAA) dismissed the appeal in its entirety. It held that the complainant reported the robbery at the earliest opportunity from hospital, so there were no two inconsistent reports; that under section 119 of the Evidence Act the court could presume the theft from the circumstances; and that there were concurrent findings of fact by the two lower courts which it could not disturb absent lack of evidentiary support. The appellant's new explanation that he assaulted the complainant over a girlfriend was rejected as inadmissible additional evidence under Rule 29(1)(b) and an afterthought. No costs order is recorded.

Key legal issues

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01

Proof of the theft element of robbery with violence

Holding

The theft of the phone and other items was proved to the required standard by the complainant's credible evidence and permissible presumptions, notwithstanding that no recovery of the stolen items was made.

Reasoning

The complainant gave consistent and credible evidence of the circumstances of both encounters; the two courts below believed his entire evidence. The appellant's admission of the assault, coupled with his claim of having no money on the second occasion and the disappearance of the complainant's items, supported the inference that the assault was in furtherance of robbery. The absence of recovery of the stolen property did not negate the theft element. The concurrent findings of fact stood unchallenged on evidence.

p. 3
02

Effect of initial reports of assault or attempted murder

Holding

The initial reports did not contradict the robbery charge because they were made by the complainant's colleagues while he was hospitalised and could only describe what they observed.

Reasoning

The report of assault or attempted murder was not made by the complainant but by his colleagues when he was already admitted in hospital, in intensive care, and could not be seen by the investigating officer. The complainant recorded a statement on 4th July 2006 complaining of robbery, and by the identification parade of 5th July 2006 a robbery complaint had been made. There were thus no two inconsistent reports by the complainant.

p. 2
03

Reception of additional evidence and afterthought explanations on second appeal

Holding

The appellant's explanation that he assaulted the complainant over a girlfriend could not be received as additional evidence and was an afterthought.

Reasoning

Rule 29(1)(b) of the Court of Appeal Rules permits reception of additional evidence only where the appeal is from the High Court exercising original jurisdiction; this was a second appeal from a High Court appellate decision. Moreover, the explanation was raised for the first time on appeal, was not put to the prosecution witnesses, and was properly rejected as an afterthought.

p. 3

Legal principles established

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  • A second appellate court will not interfere with concurrent findings of fact of the two courts below unless those findings were not supported by evidence.
  • Under section 119 of the Evidence Act, a court may presume the existence of any fact having regard to the common course of natural events and human conduct in relation to the facts of the case.
  • An explanation first advanced on appeal, not raised at trial, cannot be received by the Court of Appeal under Rule 29(1)(b) of the Court of Appeal Rules where the appeal is not from the High Court exercising original jurisdiction, and is an afterthought.
  • A first information report of assault made by third parties before the complainant could speak does not establish two inconsistent reports where the complainant reported the robbery at the earliest opportunity.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction for robbery with violence and the sentence of death imposed by the courts below are upheld

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Evidence Actsection 119
  • Court of Appeal RulesRule 29(1)(b)
On appeal from
High Court of Kenya at Mombasa
H.C.Cr.A. No. 136 of 2008
Jurisdiction invoked
Second appellate jurisdiction under the Court of Appeal Rules; the appeal arises from the High Court's appellate decision (H.C.Cr.A. No. 136 of 2008)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "David Parseen Yiale v Republic [2013] KECA 365 (KLR)", Case Analysis (2013). Criminal Appeal 188 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/365/eng@2013-01-24

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