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Court of AppealDismissedCriminal Appeal No. 57 of 2014· [2014] KECA 66 (KLR)

Joseph Kamora Maro v Republic [2014] KECA 66 (KLR)

Court of Appeal of Kenya
9 October 2014
2,491 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 being held in police custody too long earns compensation, not automatic freedom from a criminal conviction.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Okwengu, Makhandia & Sichale, JJ.A.) dismissed in its entirety the appellant's second appeal against his conviction for robbery with violence under section 296(2) of the Penal Code and the death sentence, thereby affirming the judgment of the High Court at Mombasa (Omondi & Odero, JJ.) of 15 March 2011 dismissing his first appeal. The appeal raised three issues. First, on the appellant's detention in police custody for about 65 days before being charged, the court held that the 2010 Constitution did not apply to an offence committed in 2004, and that under the retired Constitution a violation of personal liberty attracts damages, not an acquittal, following Julius Kamau Mbugua; the delay was also explained by the appellant's hospitalisation after being shot at the scene. Second, on section 200(3) of the Criminal Procedure Code, the court held that the mandatory obligation on a succeeding magistrate is only to inform the accused of the right to recall witnesses; the appellant was so informed through counsel, who elected to proceed, and the extent of recall is discretionary depending on witness availability and trial length. Samwel Ngare Kayaa, cited by the appellant, was distinguished as involving complete non-compliance. Third, on identification, the court declined to disturb the concurrent findings of the two courts below that the appellant, who was shot and found at the locus in quo, was positively identified in daylight. As a second appeal, the court's mandate was confined by section 361 to questions of law. No separate costs order was recorded.

Key legal issues

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01

Constitutional violation through prolonged pre-charge detention as a ground for acquittal

Holding

The 2010 Constitution does not apply to an offence committed in 2004; and even under the retired Constitution a breach of the right to personal liberty is compensatable by damages, not an acquittal.

Reasoning

The offence was committed before the 2010 Constitution came into force, so article 49(1)(f) was inapplicable. Under the retired Constitution, the court followed Julius Kamau Mbugua, holding that breach of personal liberty is a civil-constitutional right compensatable by damages, beyond the statutory duty of a criminal court. The delay was also explained by the appellant's hospitalisation after being shot at the scene.

p. 3
02

Compliance with section 200(3) of the Criminal Procedure Code on succession of magistrates

Holding

The mandatory duty is to inform the accused of the right to recall witnesses; the trial court complied, having informed the accused through counsel who opted to proceed, and the appellant waived recall by electing to continue.

Reasoning

The trial was handled by three magistrates, but each time the appellant was informed of his right; counsel opted to proceed from where the case had reached. The court distinguished Samwel Ngare Kayaa, where there was complete non-compliance. Recall of witnesses is discretionary, dependent on witness availability and trial length, and the magistrate had in fact directed that witnesses in Kenya be recalled though no names were furnished.

p. 4
03

Identification of the appellant as one of the robbers

Holding

Identification was proved beyond reasonable doubt: the robbery occurred in daylight, witnesses gave vivid accounts, and the appellant was shot and found at the locus in quo by PW2.

Reasoning

The first appellate court analysed and re-examined the identification evidence and found positive identification. The most compelling evidence was that the appellant was shot by PW2 and fell at the scene. He did not deny being on PW2's premises, and his defence of having gone for a drink was rejected by both lower courts. The Court found no reason to disturb those concurrent findings.

p. 5

Legal principles established

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  • A suspect whose personal liberty is violated by prolonged police detention is entitled to an award of damages, not an acquittal.
  • A magistrate taking over a partly-heard trial is mandatorily obliged only to inform the accused of the right to recall witnesses under section 200(3) CPC; whether actually to recall them is discretionary and depends on availability of witnesses and the length of the trial.
  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two lower courts unless no reasonable tribunal could have reached them.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Conviction and sentence (death) as imposed by the trial court and affirmed by the High Court are upheld

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 200(3)
  • Criminal Procedure Codesection 7
  • The retired Constitution of Kenyasection 72(3)(b)
  • Constitution of Kenya, 2010article 49(1)(f)

Cases cited (7)

  • Ann Njogu & 5 Others v Republic
    [2007] eKLR
  • Albanus Mwasia Mutua v Republic
    [2006] eKLR
  • Samwel Ngare Kayaa alias Kuria Wanjohi alias Mapua & Another v R
    Mombasa Criminal Appeal No. 5 of 2011 (UR)
  • Hamisi Mbela & Another v. Republic
    Mombasa Criminal Appeal No. 319 of 2009 (UR)
  • M'Riungu vs Republic
    [1983] KLR 445
  • Martin v Glyneed Distributors Ltd (t/a MBS Fastenings)
  • Julius Kamau Mbugua v R
    Criminal Appeal No. 50 of 2008
On appeal from
High Court of Kenya at Mombasa
H.C.Cr.A. No. 115 of 2009
Jurisdiction invoked
Section 361 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 (1)

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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, "Joseph Kamora Maro v Republic [2014] KECA 66 (KLR)", Case Analysis (2014). Criminal Appeal No. 57 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/66/eng@2014-10-09

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