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Court of AppealPartially AllowedCriminal Appeal No. 282 of 2012· [2014] KECA 592 (KLR)

Martin Oduor Lango,Tonny Wandera Juma & Harrison Kariuki Mwangi v Republic (Criminal Appeal 282 of 2012) (Crim) [2014] KECA 592 (KLR)

Court of Appeal of Kenya
23 May 2014
PWP.N. WakiDavid Kenani MaragaD.K. MaragaWilliam OukoW. Ouko
7,239 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 upheld two robbery convictions but freed a third man because his identification parade was flawed.

What this practically means

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Executive summary

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This was a second appeal against conviction for robbery with violence and sentences of death arising from a home invasion in Kitengela on 20th January 2006 in which property valued at Ksh.7 million was stolen. As a second appeal, it lay only on questions of law under Section 361 of the Criminal Procedure Code, and the Court of Appeal respected the concurrent findings of fact by the trial court and the High Court (Ochieng & Achode, JJ.) of 9th July 2013. For the first and second appellants, Oduor and Wandera, the court held that the complainant's active involvement in investigations, arrests and recoveries did not vitiate the trial: assisting the police is a civic duty, the investigation remained under the control of the police investigating officer, and allegations that family witnesses were influenced were mere suspicion. The recognition evidence - sustained observation over some seven hours under generator lighting of persons known to the witnesses - was properly evaluated, and no identification parade was necessary in a case of recognition. The doctrine of recent possession was correctly applied, the Penal Code definition of possession encompassing constructive possession, since stolen goods were recovered from a house the appellants had rented a week earlier and to which Wandera led the police. Their appeals were dismissed. For the third appellant, Kariuki, a stranger to the witnesses, an identification parade was imperative; the only parade, conducted over a year after the event, was in respect of a differently named person and did not comply with the Force Standing Orders, leaving only dock identification. His conviction was quashed and the death sentence set aside, and he was ordered set free unless otherwise lawfully held.

Key legal issues

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01

Pre-trial investigative breach of fair trial rights

Holding

The complainant's active assistance to the police, authorised and supervised by the investigating officer, did not take over the investigation or breach constitutional rights; pre-trial breaches are distinct from trial-related breaches and should be raised at the earliest opportunity

Reasoning

The court distinguished trial-related from pre-trial breaches following Julius Kamau Mbugua v Republic. R did not record statements, collect evidence or make final arrests; a police investigating officer testified to conducting the investigation. Assistance by a private citizen is a civic duty, and under Section 34 of the Criminal Procedure Code private persons may even arrest offenders. Allegations of influence on family witnesses were mere suspicion, unsupported by cross-examination.

p. 7
02

Identification and recognition evidence

Holding

Recognition evidence of known persons, sustained over hours in favourable lighting, was properly evaluated and required no identification parade; failure to name the assailants in the first report was not fatal

Reasoning

Applying Turnbull principles, the High Court analysed the identification evidence with caution. The robbery lasted about seven hours with generator lighting, and the witnesses knew the appellants as former workers; some masks were removed. The witnesses told police they could identify their attackers. In recognition cases a parade is pointless, and the non-production of the Occurrence Book caused no prejudice since the appellants bore no burden of proof.

p. 8
03

Doctrine of recent possession

Holding

Conviction was properly sustained where stolen goods were recovered from a house jointly rented by the appellants shortly after the robbery; the Penal Code definition of possession includes constructive possession

Reasoning

The prosecution proved the goods were stolen, recently, and found in a house the appellants had rented a week earlier and to which Wandera freely led police. Possession need not be physical: under Section 4 of the Penal Code it covers knowingly having items in another's custody or in any place for one's benefit. The Kibe accomplice claim and Oduor's alibi were rightly rejected as smokescreens inconsistent with the identification evidence.

p. 9
04

Identification parade for Kariuki

Holding

The conviction of Kariuki was unsafe: the only parade was conducted more than a year after the event in the name of a different person ('John Kariuki Mwangi') and not in accordance with the Force Standing Orders; being a stranger to the witnesses, an identification parade was imperative

Reasoning

Kariuki was a stranger, so the scene identification had to be connected to him by a proper parade. Witness descriptions varied, and R arrested him on the strength of a photograph alone. The High Court had itself found it could not assume the parade suspect was the appellant, yet still upheld the identification - an inconsistency. The parade's non-compliance with Force Standing Orders 6(iv)(d) was fatal, leaving only worthless dock identification.

p. 10

Legal principles established

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  • On a second appeal, the Court of Appeal only decides questions of law and respects concurrent findings of fact of the two lower courts unless they were not based on any evidence, were based on a perversion of the evidence, or involved an error in principle
  • A citizen's assistance to police in detecting and investigating crime does not vitiate a trial; it is the civic duty of every citizen to assist law enforcement agencies
  • The Penal Code definition of possession encompasses constructive possession, with knowledge and consent, sufficient for the doctrine of recent possession
  • An identification parade for a suspect who is a stranger to the witnesses is imperative and must comply with the Force Standing Orders; a parade conducted for a different person is a fatal omission and the resulting conviction cannot stand on dock identification alone

Court orders

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  1. 1.Dismissal of the appeals of the 1st and 2nd appellants (Oduor and Wandera)
  2. 2.Allowance of the appeal of the 3rd appellant (Kariuki)
  3. 3.Quashing of Kariuki's conviction
  4. 4.Setting aside of the sentence of death imposed on Kariuki
  5. 5.Kariuki to be set free unless otherwise lawfully held

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 49
  • Constitution of Kenya, 2010Chapter Four - Bill of Rights
  • Constitution of Kenya (repealed)Section 72
  • Constitution of Kenya (repealed)Section 77
  • Penal CodeSection 296(2)
  • Penal CodeSection 4 (definition of possession)
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 34
  • Criminal Procedure CodeSection 169(1)
  • Force Standing OrdersChapter 46, 6(iv)(d)

Cases cited (4)

  • THIONGO V. REPUBLIC
    (2004) 1 EA 333
  • JULIUS KAMAU MBUGUA v. REPUBLIC
    Cr. Appeal No. 50 of 2008
  • REPUBLIC VS. TURNBULL & OTHERS
    (1976) 3 All ER 549
  • Arum v Rep.
    [2006] 1 KLR pg. 233
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 677 of 2012
Jurisdiction invoked
Section 361, Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Martin Oduor Lango,Tonny Wandera Juma & Harrison Kariuki Mwangi v Republic (Criminal Appeal 282 of 2012)  (Crim) [2014] KECA 592 (KLR)", Case Analysis (2014). Criminal Appeal No. 282 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/592/eng@2014-05-23

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