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Court of AppealDismissedCriminal Appeal No. 338 of 2011· [2015] KECA 293 (KLR)

Livingstone Musambi Okumu v Republic [2015] KECA 293 (KLR)

Court of Appeal of Kenya
29 October 2015
David Kenani MaragaD. K. MaragaDMD. K. MusingaAMA. K. Murgor
1,139 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that prosecutors don't need to call every witness, and an attempted robbery conviction stands even if nothing is stolen.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu against the appellant's conviction for attempted robbery with violence contrary to section 297(2) of the Penal Code and the sentence of death imposed by the trial magistrate's court, a conviction and sentence affirmed by the High Court at Kitale (Ibrahim and Karanja, JJ.) on 21st October 2011. The charge arose from an incident on 8th April 2004 at Mitune Estate, Trans Nzoia, in which the complainant, PW1, was attacked by three men who searched his pockets and stabbed him with a knife when he resisted; neighbours apprehended the appellant, who was caught holding onto the complainant. On appeal, counsel for the appellant argued that the prosecution failed to call several potential witnesses - the complainant's wife, PC Valwa, the owner of a motor vehicle, and the investigating officer - thereby weakening the case, and that there was no proof that anything was stolen. The Court, in a single judgment of the bench (Maraga, Musinga and Murgor, JJA), held that under section 143 of the Evidence Act no particular number of witnesses is required and the prosecution determines whom to call; that none of the uncalled witnesses would have added material evidence; and that failure to call an investigating officer does not automatically result in acquittal, each case turning on its own circumstances. Finding the appellant caught in the very act of attempting to rob, with no possibility of mistaken identification, the Court held the trial magistrate was perfectly right to convict for attempted robbery with violence and dismissed the appeal in its entirety, affirming the decision below.

Key legal issues

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01

Effect of non-invocation of potential witnesses by the prosecution

Holding

Failure to call the complainant's wife, PC Valwa or the investigating officer did not weaken the prosecution case or occasion any injustice, since none of them would have added material evidence

Reasoning

Section 143 of the Evidence Act abolishes any numerical requirement of witnesses, leaving the prosecution to decide who to call. The wife played no significant role and witnessed nothing; PC Valwa merely took the appellant to the police station after re-arrest; the investigating officer's absence caused no injustice on these facts.

p. 3
02

Sufficiency of proof of attempted robbery with violence where nothing was actually stolen

Holding

A conviction for attempted robbery with violence was properly entered where the appellant assaulted the complainant with intent to steal while in the company of two others, even absent proof that anything was stolen

Reasoning

The appellant was caught in the very act of attempting to rob PW1, held firmly by the complainant until neighbours arrived, eliminating any possibility of mistaken identification. Assault with intent to steal in the company of others satisfied the elements of attempted robbery with violence; actual theft need not be proved for the attempt.

p. 3

Legal principles established

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  • No particular number of witnesses is required to prove a fact; it is for the prosecution to determine who to call in support of its case
  • Failure to call an investigating officer does not automatically result in an acquittal; each case must be considered on its own circumstances

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction for attempted robbery with violence and sentence of death as affirmed by the High Court upheld

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 297(2)
  • Evidence Actsection 143

Cases cited (2)

  • HARWARD SHIKANGA & ANOTHER V REPUBLIC
    [2008] eKLR
  • CLIFF BIKERI MOKUA & ANOTHER V REPUBLIC
    [2014] eKLR
On appeal from
High Court of Kenya at Kitale
H. C. CRA. NO. 79 OF 2005
Jurisdiction invoked
Second appeal to the Court of Appeal under the law relating to criminal appeals (charge under section 296(2)/297(2) of the Penal Code); specific constitutional provision not stated in the judgment

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, "Livingstone Musambi Okumu v Republic [2015] KECA 293 (KLR)", Case Analysis (2015). Criminal Appeal No. 338 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/293/eng@2015-10-29

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