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Court of AppealDismissedCriminal Appeal No. 58 of 2013· [2015] KECA 112 (KLR)

Michael Lozoru Lokut v Republic [2015] KECA 112 (KLR)

Court of Appeal of Kenya
17 December 2015
1,781 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 small charge-sheet errors do not overturn a robbery conviction unless they cause real injustice to the accused.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (sitting at Meru), in a judgment of the full court delivered by Nambuye, Kiage and Sichale, JJ.A, dismissed the appellant's second appeal against conviction for robbery with violence under Section 296(2) of the Penal Code. The trial before the Principal Magistrate at Isiolo ended in conviction on all counts, with a death sentence on count I; the High Court (Lesiit and Makau, JJ.) dismissed the first appeal on 29th November 2012. As a second appeal under Section 361 of the Criminal Procedure Code, the court was confined to matters of law and bound by the concurrent factual findings of the lower courts. Counsel for the appellant challenged the charge sheet's statement of the place of the offence, the omission of a radio from the stolen items, the identification of the maize and ownership of the recovery house, and the production of an expert report by a non-maker. The court held that the location discrepancy and the omission of the radio were irregularities cured by Section 382 of the Criminal Procedure Code, as neither occasioned a miscarriage of justice, and that Section 77 of the Evidence Act permitted PW5 to produce the ballistic report prepared by his long-serving colleague. The appeal was dismissed, but the court found the trial court misdirected in suspending, without imposing, sentences on counts II and III; it imposed sentences of 7 years on each of those counts, running concurrently, but to remain suspended in view of the death sentence on count I.

Key legal issues

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01

Defect in the charge sheet as to the place of the offence

Holding

The discrepancy between Maili Tano and Kambi ya Juu was an irregularity cured by Section 382 of the Criminal Procedure Code, as it did not occasion a failure of justice.

Reasoning

The court declined to treat the discrepancy as a mere typographical error, observing that Kambi ya Juu is within Maili Tano or vice versa. It held that even if an error, it was cured by Section 382 because no miscarriage of justice was occasioned. The same reasoning covered the omission of the radio from the list of stolen items.

p. 3
02

Production of an expert report by a person other than its maker

Holding

Section 77 of the Evidence Act permits such reports to be used in evidence and produced by a person who is not the author, provided the signature is genuine.

Reasoning

PW5, a ballistic expert who had worked with Alex Mwandawiro for over ten years, was well versed with his signature and could produce the report prepared by his colleague. Section 77(2) permits the court to presume the genuineness of the signature and the maker's office and qualifications.

p. 3
03

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

The court's mandate is limited to matters of law; concurrent findings of fact by the two lower courts are binding unless unsupported by evidence or based on wrong principles.

Reasoning

Grounds concerning identification of the maize, ownership of the house, the padlock contradiction and the value of footprint evidence were all matters of fact falling outside the second appellate court's purview, and the court discerned no misdirection by the courts below.

p. 2
04

Suspension of sentence without imposition on counts II and III

Holding

The trial court misdirected itself by suspending sentences it had not imposed; the Court of Appeal itself imposed sentences of 7 years on each of counts II and III, to run concurrently but to remain suspended in view of the death sentence on count I.

Reasoning

A sentence can only be suspended if it exists; the trial court's failure to first impose sentences on counts II and III was a misdirection. The appellate court therefore imposed the sentences itself and preserved the suspension given the death sentence on the principal count.

p. 3

Legal principles established

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  • A second appellate court is confined to matters of law and is bound by concurrent findings of fact of the two lower courts unless those findings are not backed by evidence, are based on a misapprehension of the evidence, or the courts below acted on wrong principles.
  • An error, omission or irregularity in a charge, including a misdescription of the place of the offence or the omission of a stolen item, does not warrant reversal on appeal unless it has occasioned a failure of justice.
  • In criminal proceedings, a report by a Government analyst, medical practitioner, ballistics expert, document examiner or geologist may be used in evidence, and may be produced by a person who is not its author where the producing witness is familiar with the maker's signature.
  • A trial court misdirects itself where it suspends a sentence without first imposing it; sentences must be imposed before they may be suspended.

Court orders

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  1. 1.Appeal dismissed
  2. 2.A sentence of 7 years imposed in respect of each of counts II and III, to run concurrently
  3. 3.Those sentences to remain suspended in view of the death sentence imposed in respect of count I

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 322(2)
  • Firearms ActSection 4(1) as read with Section 4(3)
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 382
  • Evidence ActSection 77

Cases cited (2)

  • Njoroge v Republic
    [1982] KLR 388
  • Chemagong v Republic
    [1984] KLR 611
On appeal from
High Court of Kenya at Meru
H.C. CR.A. No. 49 of 2011
Jurisdiction invoked
Section 361(a) 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, "Michael Lozoru Lokut v Republic [2015] KECA 112 (KLR)", Case Analysis (2015). Criminal Appeal No. 58 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/112/eng@2015-12-17

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