Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 360 of 2012· [2014] KECA 317 (KLR)

Evans Kalo Callos v Republic [2014] KECA 317 (KLR)

Court of Appeal of Kenya
17 October 2014
RNR. N. NambuyePKP. O. KiageSKS. Gatembu Kairu
4,824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed a bank robbery appeal, confirming that CCTV photo identification and properly joined charges can sustain a conviction.

What this practically means

#

Executive summary

#
The appellant was convicted by the Magistrate's Court at Nairobi on three counts of robbery with violence and on charges of possession of a firearm and ammunition without a certificate, arising from the armed robbery of the Westlands Branch of Bank of India on 7th November 2005 in which Kshs. 4,286,758.10 was stolen, and from the recovery of a pistol and ammunition from his Vihiga home on 24th December 2006. The High Court (Khaminwa and Warsame, JJ) dismissed his first appeal on 28th May 2012, upholding the death sentence on count I and holding the other sentences in abeyance. In this second appeal, entertainable only on grounds of law under section 361 of the Criminal Procedure Code, the Court of Appeal (Nambuye, Kiage and Gatembu Kairu, JJ.A) framed six issues: identification and admissibility of the CCTV photographic evidence; failure to call essential witnesses; validity of the charge sheet joining the Nairobi and Vihiga offences; proof of handwriting on the search inventory; consideration of the alibi defence; and the adequacy of the High Court's re-evaluation of the evidence. The court held that recognition of clothing from CCTV images is a valid aid to identification, that PW4's recognition of the appellant supported the conviction, and that no objection having been taken at trial, section 78 of the Evidence Act did not bar admission of the photographs. The Bukenya duty to call witnesses was satisfied, the offences were properly joined under section 135(1) of the Criminal Procedure Code as a series of similar character, and section 70 of the Evidence Act was complied with. The appeal was dismissed in its entirety.

Key legal issues

#
01

Whether the appellant was positively identified and whether photographic evidence was improperly admitted

Holding

Recognition of clothing captured in CCTV photographs is a valid aid to identification; PW4's recognition of the appellant from the photographs supported the conviction, and the photographs were properly admitted absent any objection.

Reasoning

The witnesses recognized the clothing worn by the robbers from CCTV prints and confirmed the images depicted the crime scene. PW4, who knew the appellant previously, identified him from the printed images. The court adopted the Archbold principle that recognition from a video recording is akin to observing primary facts. No objection was taken to the production of the photographs at trial, so section 78 of the Evidence Act did not bar their admission.

p. 5
02

Whether the prosecution failed to call essential witnesses

Holding

The prosecution discharged its duty; the evidence called was adequate and the absence of the manager, the CCTV installer and Sergeant Ndirangu was explained or unnecessary.

Reasoning

Applying Bukenya v Uganda, the court held that although the prosecution must call witnesses necessary to establish the truth, three bank employees witnessed the robbery and their evidence sufficed. The exhibit memo from Sergeant Ndirangu was produced without objection, and the manager had left the country, so no adverse inference arose.

p. 7
03

Whether the charge sheet was defective for combining unrelated offences

Holding

The charges were properly joined because the offences formed part of a series of the same or similar character under section 135(1) of the Criminal Procedure Code, and no prejudice was shown.

Reasoning

The pursuit of the appellant for the November 2005 robbery led to the discovery of the firearm and ammunition in December 2006, linking the offences. Both involved use and possession of firearms, giving them similar character. Unlike R v Newland, the offences were connected, and no suggestion of embarrassment or prejudice was raised at trial.

p. 7
04

Whether the handwriting and signatures on the search inventory were proved under section 70 of the Evidence Act

Holding

Section 70 was complied with: PW4, the maker of the inventory, produced it as an exhibit and his evidence was unchallenged and corroborated by PW5.

Reasoning

The maker of the document testified that he prepared it and produced it as its maker. There was no objection to its production nor any suggestion that it was not in his handwriting, and PW5 who was present at the search supported his evidence.

p. 8
05

Whether the burden of proof was shifted and whether the High Court re-evaluated the evidence

Holding

The trial court considered the evidence as a whole and the High Court independently re-evaluated it; the burden of proof never shifted from the prosecution.

Reasoning

Relying on Woolmington v DPP and Okeno v R, the court held that both lower courts were under a duty to consider the prosecution and defence evidence together and determine whether reasonable doubt existed. Nothing in the trial court's judgment indicated a shift of burden, and the High Court arrived at its own conclusions after independent analysis.

p. 8

Legal principles established

#
  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal may entertain the appeal only on grounds of law.
  • Offences may be charged together in the same charge sheet where they are founded on the same facts or form part of a series of offences of the same or similar character, and absence of prejudice to the accused will sustain a joint charge.
  • Photographic evidence from CCTV footage is not inadmissible for want of a certificate under section 78 of the Evidence Act where no objection to its production is taken at trial.
  • The prosecution is not obliged to call every possible witness; it suffices that the evidence called is adequate and that unavailability of other witnesses is explained.

Court orders

#
  1. 1.The appeal is dismissed in its entirety

Authorities

#

Legislation

  • Penal Codesection 296(2)
  • Firearms Actsection 4(2)(a)
  • Criminal Procedure Codesection 361
  • Evidence Actsection 78
  • Evidence Actsection 70
  • Evidence Actsection 57
  • Criminal Procedure Codesection 135(1)
  • Criminal Procedure Codesection 135(3)
  • Misuse of Drugs Act 1971 (England)null

Cases cited (7)

  • R vs. Newland
    [1988] 2 All. E. R 891
  • Okale v R
    [1965] E A 555
  • Dickson Mwaniki M’obici v R
    Criminal Appeal No. 78 of 2006
  • Gabriel Kamau Njoroge v R
    (1982-88) 1 KAR 1134
  • Bukenya and others v Uganda
    [1972] E. A. 549
  • Woolmington v DPP
    [1935] All E R 1
  • Okeno v R
    [1972] EA 32
On appeal from
High Court of Kenya at Nairobi
HC. CR.A. 795 OF 2007
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Evans Kalo Callos v Republic [2014] KECA 317 (KLR)", Case Analysis (2014). Criminal Appeal No. 360 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/317/eng@2014-10-17

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