Charles Kago Kanandia v Republic [2014] KECA 638 (KLR)

Court of Appeal of Kenya

4 March 2014

D. K. Maraga GKG. B. M. Kariuki

P. M. Mwilu

2,031 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed a robbery with violence conviction and death sentence, ruling second appeals only cover questions of law, not facts.

What this practically means

Executive summary

The Court of Appeal (Maraga, G.B.M. Kariuki and Mwilu, JJA) dismissed a second appeal against conviction for robbery with violence and the resultant death sentence. The appellant had been convicted by the Chief Magistrate's Court at Kibera alongside another accused; the co-accused and the count of house breaking and stealing had fallen away, and the High Court (J.B. Ojwang and Warsame, JJ) dismissed the first appeal on 1st October 2009. The Court restated that, under section 361(1)(a) of the Criminal Procedure Code, a second appeal is confined to matters of law, and that it is bound by the concurrent findings of fact of the two courts below, citing M'Riungu v R. It rejected the contention that the High Court failed to evaluate the evidence, quoting the High Court's own analysis at length. On the substantive offence, the Court held that section 296(2) of the Penal Code is disjunctive: proof of any one of the three ingredients - multiple attackers, arming with a dangerous weapon, or personal violence - suffices, although here all three were present, with four intruders, a knife, and the complainant tied up and robbed of Kes.500/=. The identification objection failed because the appellant was arrested at the scene, in daylight, still holding the very knife with which he had threatened the complainant. The complaints about the appellant's defence, his absent witness John, and the prosecutor's rank were all rejected on the record. The appeal was dismissed, the conviction upheld and the sentence affirmed.

Key legal issues

Scope of second appeal under section 361(1)(a) Criminal Procedure Code

Holding

The Court's jurisdiction is confined to matters of law; it must accept the lower courts' findings of fact unless no reasonable tribunal could have reached them.

Reasoning

The Court invoked section 361(1)(a) and adopted the M'Riungu v R restatement, holding that it could not disturb concurrent findings of fact made by the trial and first appellate courts, and that the complaint that the High Court failed to evaluate the evidence was not borne out by the High Court's judgment, which expressly analysed and evaluated the evidence.

Ingredients of robbery with violence under section 296(2) Penal Code

Holding

The three ingredients are that the attackers are more than one, they are armed, and there is assault or personal violence; proof of any one suffices because the section uses the disjunctive 'or'.

Reasoning

Scanning section 296(2), the Court identified the three ingredients and noted that here all three were concurrently present: there were four attackers, one was armed with a knife, and the victim was tied up, assaulted and robbed of Kes.500/=. The Court corrected the impression that all ingredients must be proved, given the word 'or'.

p. 3

Identification of the appellant

Holding

The appellant was positively identified: he was arrested at the scene in the banana plantation armed with the very knife used to threaten the complainant, and identification by PW4 immediately followed.

Reasoning

The appellant was arrested in flagrante within the compound, knife in hand, by PW2, PW3 and PW5, and PW4 immediately recognised him as the man who had earlier threatened him with that knife. These were concurrent findings of fact binding on the Court, making the single-identifying-witness and dock identification objections misplaced.

p. 4

Legal principles established

On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law only under section 361(1)(a) of the Criminal Procedure Code.
Where a right of appeal is confined to questions of law, the second appellate court must accept the findings of fact of the lower courts and may only interfere where no reasonable tribunal could have reached the conclusion.
For robbery with violence under section 296(2) of the Penal Code, the prosecution need prove only one of the three ingredients (presence of more than one attacker, arming with a dangerous weapon, or use of personal violence), the section being disjunctive.
Concurrent findings of fact by the two courts below bind a second appellate court.

Court orders

1.Appeal rejected
2.Conviction upheld
3.Sentence of death affirmed

Authorities

Legislation

Penal Codesection 296(1)
Penal Codesection 296(2)
Penal Codesection 304(1)
Criminal Procedure Codesection 361(1)(a)

Cases cited (3)

David Njoroge Macharia v R
[2011] eKLR
M’Riungu v R
[1983] KLR 455
Martin v Glyneed Distributors Limited (T/A MBS Fastenings)
The Times of March 30, 1983

On appeal from: High Court of Kenya at Nairobi; HCCRA No. 491 of 2006
Jurisdiction invoked: Section 361(1)(a) of the Criminal Procedure Code - second appeal confined to matters of law

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Charles Kago Kanandia v Republic [2014] KECA 638 (KLR)", Case Analysis (2014). Criminal Appeal No. 394 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/638/eng@2014-03-04

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