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Court of AppealPartially AllowedCriminal Appeals Nos. 72 & 73 of 2011 (Consolidated)· [2015] KECA 49 (KLR)

Moses Moseti Oloo & another v Republic [2015] KECA 49 (KLR)

Court of Appeal of Kenya
25 June 2015
David Kenani MaragaD. K. MaragaDMD. K. MusingaAMA. K. Murgor
3,392 words in judgment
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The bottom line

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Kenya's Court of Appeal freed two men sentenced to death for robbery because police broke the chain of custody of the guns and mishandled identification parades.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Maraga, Musinga & Murgor, JJA) allowed two consolidated second appeals by Moses Moseti Oloo and Stephen Nyongesa Makokha against their conviction for two counts of robbery with violence and death sentences, arising from a robbery at Kona Mbaya Junction, Matunda, on 16th June 2005. The appeal lay from the High Court at Kitale (Koome & Azangalala JJ.) which had dismissed the first appeal. The Court's jurisdiction was confined to matters of law under section 361(1) of the Criminal Procedure Code. The Court found that the conviction rested on eyewitness identification and on the recovery of an AK 47 rifle and pistol. On the firearms, it held the chain of custody broken: PW 8 never recorded the rifle's serial number, the rifle reached the ballistic expert through an officer unconnected with the case, and the number of spent cartridges recovered and examined did not match; benefit of doubt therefore accrued to the appellants. On identification, the Court found it unsafe to convict: the robberies occurred at night under unfavourable lighting, identification parades were held one to three months later, no descriptions of the assailants had been given beforehand, the parade composition of twenty dissimilar members contravened the Force Standing Orders, and the witnesses' accounts contradicted the parade officer's evidence. The Court rejected arguments that the charge was defective for alleging a threat to shoot, holding that proof of any single element of section 296(2) suffices, and that failure to call the investigating officer weakened but did not vitiate the prosecution case. The convictions were quashed, the death sentences set aside, and the appellants set at liberty unless otherwise lawfully held. No costs order was made.

Key legal issues

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01

Nexus between recovered firearms and the offences charged

Holding

The benefit of doubt was given to the appellants because it was not established that the AK 47 examined by the ballistic expert was the same rifle recovered from the appellants

Reasoning

PW 8 did not state the serial number of the recovered rifle, AK 47s can only be distinguished by serial numbers, and the rifle reached the expert through P.C. Sammy Kimaiyo Tanui who was unconnected to the case. Further, PW 4 recovered four spent cartridges at the scene but PW 6 said only two were given to him. Proof beyond reasonable doubt was therefore not attained.

p. 4
02

Identification of the appellants by eyewitnesses and the identification parade

Holding

It was unsafe to convict on the identification evidence of PW 1 and PW 2

Reasoning

The robbery occurred at night with light beamed away from the assailants' faces, the witnesses attended parades one to three months later, neither had given descriptions of the assailants beforehand, the parade had 20 members of differing height and size contrary to Force Standing Orders, and the witnesses' accounts of the parade contradicted PW 7's evidence of an eight-member parade.

p. 5
03

Sufficiency of a charge alleging a threat to shoot

Holding

The charge was not defective; threatening to use violence satisfies the ingredients of robbery

Reasoning

Section 296(2) defines robbery with violence and must be read with section 296(1), whose ingredients include using or threatening to use actual violence. Proof of any one element suffices. Oluoch v Republic was applied in setting out those ingredients.

p. 5

Legal principles established

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  • On a second appeal the Court of Appeal's jurisdiction is limited to matters of law
  • Where the chain of custody of a weapon recovered is not established through evidence of serial number and continuity, the benefit of doubt must go to the accused
  • Identifying witnesses must give the police a description of their assailants before an identification parade is conducted
  • Proof of any one of the elements of robbery with violence under section 296(2) is sufficient
  • Failure to call the investigating officer does not automatically result in an acquittal; each case turns on its own circumstances

Court orders

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  1. 1.The appeals are allowed
  2. 2.The appellants' conviction by the trial court is quashed
  3. 3.The death sentence pronounced against each of the appellants is set aside
  4. 4.The appellants are set at liberty unless otherwise lawfully held
On appeal from
High Court of Kenya at Kitale
H.C.C.A Nos. 5 & 6 of 2009
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal limited 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, "Moses Moseti Oloo & another v Republic [2015] KECA 49 (KLR)", Case Analysis (2015). Criminal Appeals Nos. 72 & 73 of 2011 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/49/eng@2015-06-25

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