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Court of AppealDismissedCriminal Appeal No. 263 & 264 of 2011 (R)· [2015] KECA 270 (KLR)

Michael Onyango Obondo & 2 others v Republic [2015] KECA 270 (KLR)

Court of Appeal of Kenya
6 November 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaAMA.K. Murgor
3,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld robbery convictions and death sentences, confirming that second appeals only address legal errors, not facts.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Maraga, Musinga & Murgor, JJ.A) dismissed a second appeal by Michael Onyango Obondo, Duncan Ouma Ochieng and Duncan Ouma Angang'o against convictions and death sentences for robbery with violence, breaking and committing a felony, stealing and handling stolen goods arising from incidents in Muhoroni in 2005. The court framed four issues: fair hearing, identification, recent possession and the legality of the sentence. On fair hearing, it held that the OB was eventually produced and that recall of a witness under section 150 of the Criminal Procedure Code is discretionary, so the magistrate's refusal to recall the complainant did not violate rights. The prosecution was not obliged to call Mbita or Ibrahim. On identification, the first appellant was recognised by the complainant, making an identification parade superfluous; the second and third appellants, though only identified in the dock, were identified in broad daylight, the third by a bite injury sustained in the struggle, and the first appellant led police to their homes. Convictions on counts 2 to 7 rested on recent possession, the appellants offering no explanation for possession of stolen items. The death sentence under section 296(2) of the Penal Code was lawful; the court had no jurisdiction under section 361(1) to consider severity, and the pronouncement of sentence did not breach Article 25 of the Constitution. The appeal was dismissed and the findings and convictions of the courts below upheld.

Key legal issues

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01

Fair hearing - failure to produce OB promptly and refusal to recall witness

Holding

The ground fails; the OB was eventually produced and recall of a witness is discretionary.

Reasoning

The trial court had ordered production of the OB and it was eventually produced. Section 150 of the Criminal Procedure Code empowers a court at any stage to summon, recall or re-examine a witness, but recall is not mandatory. The trial magistrate declined recall on 19 July 2007 for reasons that the request was an afterthought, an exercise of discretion which could not ground a claim of rights violation.

p. 5
02

Non-calling of crucial witnesses (Mbita and Ibrahim)

Holding

The prosecution was not obliged to call them; the appellants could have called them as their own witnesses.

Reasoning

The appellants complained that Mbita, who linked Bernard's report to the police, and Ibrahim, a good samaritan, were not called. The court agreed with the State that the prosecution had no mandate to call every possible witness and nothing prevented the defence from calling them, so no adverse inference arose.

p. 5
03

Identification and recognition of the appellants

Holding

The 1st appellant was identified by recognition; the 2nd and 3rd by identification under favourable conditions, and recent possession corroborated the case.

Reasoning

The attack occurred in broad daylight at about 7.00 a.m. and Bernard had encountered the assailants before. Recognition of the 1st appellant removed any need for a parade. For the 2nd and 3rd appellants, dock identification in the absence of a parade was not fatal given the favourable conditions, the bite injury on the 3rd appellant's finger, and the 1st appellant leading police to their houses. Convictions were safe.

p. 6
04

Recent possession (counts 2 to 7)

Holding

Convictions on the doctrine of recent possession were well founded because the appellants gave no explanation for possession of stolen items.

Reasoning

Stolen items were recovered from the appellants' houses shortly after the robberies. The appellants offered no explanation in their defences as to how the items came into their possession, satisfying the doctrine of recent possession and confirming the convictions on counts 2 to 7.

p. 6
05

Legality and severity of the death sentence

Holding

The death sentence under section 296(2) of the Penal Code is lawful, and severity is not appealable; the pronouncement did not breach Article 25.

Reasoning

Section 296(2) prescribes death as the only sentence for robbery with violence, so the sentence was lawful. Section 361(1) of the Criminal Procedure Code ousts jurisdiction over severity. Article 25 protects against torture and cruel, inhuman or degrading treatment, but a judicial pronouncement of sentence is not conduct of that character.

p. 6

Legal principles established

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  • A second appellate court confined to questions of law must accept the findings of fact of the lower courts and not interfere unless no reasonable tribunal could have reached the same conclusion.
  • Recall of a witness under section 150 of the Criminal Procedure Code is discretionary, not mandatory, and a reasoned exercise of that discretion does not violate fair-hearing rights.
  • Evidence of recognition dispenses with the need for an identification parade.
  • The Court of Appeal has no jurisdiction to entertain appeals on the severity of a lawful sentence.

Court orders

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  1. 1.The lower courts' findings and convictions were upheld
  2. 2.The appeals were dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 306(a)
  • Penal Codesection 304(2)
  • Penal Codesection 279(b)
  • Penal Codesection 322(2)
  • Penal Codesection 25
  • Constitution of KenyaArticle 25
  • Constitution of KenyaArticle 25(a)
  • Criminal Procedure Codesection 150
  • Criminal Procedure Codesection 361(1)
  • Police Standing OrdersRule 46

Cases cited (3)

  • M'Riungu vs Republic
    [1983] KLR 455
  • Peter Musau v. Republic
    (2008) eKLR
  • Macharia v R
    [2003] 2 EA 559
On appeal from
High Court of Kenya at Kisumu
H.C. Cr. A. No. 181, 182 & 189 of 2007
Jurisdiction invoked
First appellate jurisdiction under section 361 of the Criminal Procedure Code over appeals from the High Court sitting as a first appellate court

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 Onyango Obondo & 2 others v Republic [2015] KECA 270 (KLR)", Case Analysis (2015). Criminal Appeal No. 263 & 264 of 2011 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/270/eng@2015-11-06

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