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Court of AppealDismissedCriminal Appeal No. 218 of 2010· [2015] KECA 632 (KLR)

Allan Ochieng Okeyo & another v Republic [2015] KECA 632 (KLR)

Court of Appeal of Kenya
30 April 2015
3,630 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that small errors in a charge sheet will not overturn a robbery conviction when the accused suffered no real prejudice.

What this practically means

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Executive summary

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The appellants were convicted by the Chief Magistrate's Court at Mombasa of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, for robbing a company messenger of Kshs.76,000/- in broad daylight along Mvita Road, Mombasa, on 8th August 2006, while armed with a toy pistol and a knife. Their first appeal to the High Court (Azangalala & Odero, JJ.) was dismissed on 29th June 2010, the court finding positive and reliable identification. On second appeal to the Court of Appeal at Mombasa (Okwengu, Makhandia & Sichale, JJ.A.), the appellants argued that the charge sheet was fatally defective because the amount stated stolen differed from the evidence; that identification evidence was poorly evaluated; that the High Court failed to re-evaluate the evidence afresh; and that members of the public who arrested them should have testified. The court, exercising its second-appeal jurisdiction limited to matters of law under section 361(1) of the Criminal Procedure Code, dismissed the appeal. It held the variance in amounts a minor misdescription curable under section 382 of the Criminal Procedure Code causing no prejudice; affirmed the concurrent findings on positive identification in broad daylight; held that a first appellate court may rehash the trial court's conclusions provided it independently considered the evidence; and held that no particular number of witnesses is required under section 143 of the Evidence Act. The conviction and sentence stand.

Key legal issues

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01

Defect in charge sheet - variance between amount charged as stolen and evidence led

Holding

The variance was a curable minor misdescription causing no prejudice; the offence and particulars were clearly set out and the appellants knew the case they faced.

Reasoning

The appellants ought ideally to have been charged with robbing the whole Kshs.220,000/-, but recovery of Kshs.144,000/- occurred after the robbery was complete. Section 137 of the Criminal Procedure Code requires only a statement of the offence and its particulars in ordinary language. Whether charged with Kshs.76,000/- or the whole sum, a robbery was committed on PW1, and the appellants suffered no prejudice; the discrepancy falls to be cured under section 382.

p. 4
02

Identification of the appellants

Holding

Positive, clear and reliable identification established; concurrent findings of the trial court and High Court on identification could not be faulted.

Reasoning

The robbery occurred at about 1.15 p.m. in broad daylight, with PW2 and PW3 only steps away. The appellants were caught at the scene in the very act and were found in possession of the toy pistol and knife used. Their defence of mistaken identity, which admitted presence at the scene, was considered and rejected by both lower courts. Being bound by concurrent findings, the Court found no sufficient reason to disturb them.

p. 5
03

Duty of the first appellate court to re-evaluate evidence

Holding

The High Court adequately discharged its duty; reaching or rehashing the same conclusions as the trial court is not objectionable if the evidence was considered afresh.

Reasoning

The High Court cited Ajode v Republic and devoted nearly half its judgment to the evidence, considered whether capital robbery was sustainable, and extensively analysed identification. A first appellate court may, depending on the facts, arrive at the same conclusions as the trial court, provided it has considered the evidence on the law and facts to satisfy itself of the correctness of the decision.

p. 5
04

Failure to call members of the public involved in the arrest

Holding

The evidence of the eyewitnesses was overwhelming; the testimony of a member of the crowd would have been superfluous and no particular number of witnesses is required.

Reasoning

Section 143 of the Evidence Act abolishes any requirement of a particular number of witnesses. The prosecution witnesses who saw the incident were cross-examined at length and their evidence, coupled with the recovery of the weapons from the appellants, was overwhelming. The principle in Bukenya & Another v Uganda on witnesses whose evidence is essential does not assist the appellants where available evidence suffices.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal concerns itself only with matters of law, unless irrelevant matters were considered or relevant matters were not considered by the courts below.
  • A first appellate court may reach the same conclusions as the trial court, even rehashing them, provided it is clear that it considered the evidence on the basis of the law and facts to satisfy itself on the correctness of the decision.
  • A court may convict on visual identification, but such evidence must be scrutinised with the greatest care and acted on only where the identification is positive and free from possibility of error.
  • A variance between the amount stated in a charge sheet and the evidence led, which occasions no prejudice to the accused, is a minor misdescription curable under section 382 of the Criminal Procedure Code.
  • No particular number of witnesses is required to prove a fact; failure to call a witness whose evidence would be superfluous does not vitiate a conviction.
  • This Court will not interfere with concurrent findings of fact by the two lower courts absent sufficient reasons.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Conviction and sentence of death imposed by the trial magistrate and affirmed by the High Court left undisturbed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 137
  • Criminal Procedure Codesection 382
  • Criminal Procedure Codesection 215
  • Evidence Actsection 143

Cases cited (4)

  • Oluoch v Republic
    (1985) KLR 549
  • Kariuki Njiru and 7 Others v Republic
    Criminal Appeal No. 6 of 2001 (UR)
  • Ajode v Republic
    [2004] 1 KLR 81
  • Bukenya & Another v Uganda
    [1972] EA 549
On appeal from
High Court of Kenya at Mombasa
H.C.Cr.A. Nos. 143 & 144 of 2007
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal on matters of law only

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, "Allan Ochieng Okeyo & another v Republic [2015] KECA 632 (KLR)", Case Analysis (2015). Criminal Appeal No. 218 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/632/eng@2015-04-30

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