Abiud Muchiri Alex & another v Republic [2015] KECA 536 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a robbery conviction because DNA evidence was collected illegally, showing proper procedure matters as much as guilt.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal
The court considers matters of law only and will not disturb concurrent findings of fact unless they are based on no evidence or tainted by misdirection or non-direction vitiating the conviction
Section 361(1) of the Criminal Procedure Code confines a second appeal to matters of law. The court relied on Ganzi and 2 others v Republic for the settled standard. Having found that the High Court properly re-evaluated the evidence and identified the issues in controversy, the court declined to disturb the concurrent factual findings on identification and the elements of the offence.
Admissibility of improperly extracted DNA samples
DNA evidence whose samples were extracted contrary to sections 122A, 122B and 122D of the Penal Code (as amended by Act No. 5 of 2003) is inadmissible, and section 175 of the Criminal Procedure Code offers no refuge as it deals with compensation
The court found the two courts below never interrogated the statutory extraction requirements. The samples were taken by an officer below the rank of inspector and without compliance with the consent or court-order mechanism. Once the DNA evidence was excluded, no other evidence placed the 2nd appellant at the scene, as it had served only to corroborate the 1st appellant's accomplice evidence against him. Clear statutory provisions cannot be ignored.
Ingredients of robbery with violence under section 296(2) and rejection of the State's concession
The High Court correctly declined to accept the State's concession because actual injury or violence to the victim is not a requirement under section 296(2); it suffices that the offender was armed with a dangerous weapon or in company of others, or that any of the robbers used violence, given common intention
The court adopted the first appellate court's reasoning that the prosecution needed to prove only that the appellants were armed or in company, or that violence was used by any of the attackers, it mattering not which one attacked the complainant so long as common intention was proved. Minor inconsistencies in the complainant's evidence on recovery of exhibits did not vitiate the case, and the recognition evidence against the 1st appellant was sound.
Duty of the first appellate court
A first appeal requires a fresh and exhaustive re-examination of the whole evidence with the appellate court reaching its own conclusions, making allowance for the trial court's advantage of seeing and hearing witnesses
Drawing on Kiilu and another v Republic and Ogeto v Republic, the court confirmed the standard and found the learned High Court judges had discharged that mandate: they set out the evidence, identified the single identifying witness issue, and answered the controversies on the basis of proven evidence on the record.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact unless based on no evidence or arrived at as a result of a misdirection or non-direction vitiating the conviction
- DNA samples must be extracted by a police officer of or above the rank of inspector, either voluntarily with written consent or by order of court, under the Penal Code as amended; DNA evidence extracted in breach of those statutory provisions is inadmissible and cannot be ignored by the courts
- On a first appeal the appellant is entitled to a fresh and exhaustive examination of the evidence and an independent conclusion by the first appellate court, not a mere scrutiny for some evidence supporting the trial court
Court orders
#- 1.Appeal of the 2nd appellant, David Kariuki Thambara, allowed and his conviction quashed
- 2.The 2nd appellant set at liberty unless otherwise lawfully held
- 3.Appeal of the 1st appellant dismissed in its entirety
- On appeal from
- High Court of Kenya at Embu
- H.C. Cr. A. No. 31 & 32 of 2013
- Jurisdiction invoked
- Second appeal under section 361(1) of the Criminal Procedure Code, confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abiud Muchiri Alex & another v Republic [2015] KECA 536 (KLR)", Case Analysis (2015). Criminal Appeal No. 2 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/536/eng@2015-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.