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Court of AppealDismissedCriminal Appeal No. 291 of 2012· [2014] KECA 35 (KLR)

Samson Matoke Machoka v Republic [2014] KECA 35 (KLR)

Court of Appeal of Kenya
2 May 2014
OOOnyango OtienoPKP.O. KiageAMA.K. Murgor
3,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that unexplained fingerprints on stolen property can prove guilt, dismissing the robbery appeal and death sentence challenge.

What this practically means

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Executive summary

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The appellant was tried before the Ag. Senior Principal Magistrate at Kisii on fourteen counts, including two of robbery with violence, ten of impersonation, possession of public stores and possession of an imitation firearm. He was convicted on counts 1, 13 and 14, sentenced to death on count 1, one year's imprisonment on count 13 and seven years on count 14, and acquitted on the rest. His first appeal to the High Court at Kisii (Musinga & Karanja, JJ) succeeded only on counts 13 and 14; the conviction on count 1 was affirmed, prompting this second appeal. Before the Court of Appeal at Kisumu, counsel abandoned one ground and argued the remainder together, attacking the fingerprint identification evidence of PW9, his qualifications, alleged tampering with the prints, and the discrepancy in the make of the stolen vehicle (Datsun vs Toyota). The court reiterated that on a second appeal it is confined to questions of law under section 361 of the Criminal Procedure Code and must accept concurrent findings of fact unless no reasonable tribunal could have reached them. Applying the Mutonyi standards for expert evidence, it held PW9 was a duly gazetted and experienced fingerprint expert who laid a proper basis for his opinion of 21 matching characteristics, evidence that went unchallenged at trial. The appellant's unexplained fingerprints on the recovered stolen vehicle, coupled with the burden of explanation under section 111 of the Evidence Act, justified the identification. The discrepancy over the vehicle's make was minor, and the tampering allegation was an unpleaded afterthought. The appeal was dismissed in its entirety. No separate costs order appears in the judgment.

Key legal issues

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01

Whether PW9 qualified as a fingerprint expert

Holding

PW9 was a qualified, experienced and duly authorized fingerprint expert; he had 16 years' experience, was gazetted in 2000, and laid a proper basis for his opinion.

Reasoning

PW9 testified he was attached to criminal records at Nairobi CID Headquarters for 16 years and was gazetted a fingerprint expert in 2000. He laid a basis for the opinion, describing receipt of the suspect's print, obtaining control prints, and comparing 21 matching characteristics. His evidence was unchallenged by another expert or the appellant at trial. The court applied the Mutonyi standards and was satisfied the evidence was satisfactory.

p. 5
02

Whether the appellant was properly identified through fingerprint evidence

Holding

Yes; fingerprints on the recovered stolen vehicle, unexplained by the appellant, pointed to him as one of the robbers, with the burden of explanation resting on him under section 111 of the Evidence Act.

Reasoning

The appellant's fingerprints were found on the roof of the cabin and windscreen of the stolen motor vehicle recovered the next morning. He offered no explanation in his defence for their presence, which under section 111 of the Evidence Act he was required to do since the facts were within his knowledge. This supported the inference that he was one of the robbers despite the absence of direct visual identification.

p. 6
03

Whether the discrepancy in the make of the stolen vehicle (Datsun vs Toyota) undermined the prosecution case

Holding

The discrepancy was minor and inconsequential and did not render the prosecution case unsafe.

Reasoning

PW7 described the stolen vehicle as a Datsun pickup while PW10 described it as a Toyota. The court found the inconsistency minor and inconsequential to the central issue of the robbery and the finding of the appellant's fingerprints on the vehicle. It had not been shown that this inconsistency was sufficient to dislodge the evidence or render the prosecution's case unsafe, so the ground failed.

p. 6
04

Whether the allegation of fingerprint tampering could ground the appeal

Holding

No; the allegation was not raised at trial and was an afterthought.

Reasoning

Counsel for the appellant suggested the prints could have been lifted from a source other than the motor vehicle and possibly tampered with. The court held that this issue was never canvassed at trial, was not put to the witnesses, and could not be raised for the first time on second appeal; it was accordingly dismissed as an afterthought.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to questions of law and must accept the findings of fact of the lower courts, interfering only where no reasonable tribunal could have reached the conclusion on the evidence.
  • An expert witness must establish special skill, instruct the court on the criteria of his science so the court can test the opinion, and give the facts on which the opinion is based; fingerprint evidence satisfying these standards is admissible and sufficient.
  • Where an accused's fingerprints are found on stolen property, the burden shifts to the accused under section 111 of the Evidence Act to explain how they came to be there, the facts being especially within his knowledge.

Court orders

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  1. 1.The appellant's appeal is dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 382
  • Penal Codesection 324(3)
  • Firearm Actsection 34(1)
  • Criminal Procedure Codesection 361(1)(a)
  • Evidence Actsection 48
  • Evidence Actsection 111

Cases cited (2)

  • Mutonyi v Republic
    [1983] KLR 455
  • David Njeru Kibuthu vs Republic
    [2005] eKLR
On appeal from
High Court of Kenya at Kisii
H.C.CR.A No. 75 of 2007
Jurisdiction invoked
Second appeal under section 361(1)(a) of the Criminal Procedure Code, confined to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samson Matoke Machoka v Republic [2014] KECA 35 (KLR)", Case Analysis (2014). Criminal Appeal No. 291 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/35/eng@2014-05-02

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