John Musyoka Muthengi & 2 others v Republic [2015] KECA 705 (KLR)

PW2 claimed to recognize the attackers by voice as customers at her food kiosk, but she never stated the length of the customer relationship, the length of the conversation that night, or what distinguished the voices. She was woken at 3 a.m. and said torches were flashed, but never explained how the light enabled recognition, for example whether the torches were flashed on the attackers themselves. Following Francis Kariuki Njiru, such circumstances do not permit positive identification. The failure of the two courts below to assess the identification as required vitiated the convictions.

PW2's husband was allegedly present during the attack and it was his Kshs.3,500 in his trouser pocket, yet he was not called to buttress PW2's evidence. That failure weakened already weak evidence. More importantly, the charge sheet particularized the stolen money as PW2's, contradicting her testimony that it was her husband's. The court invoked Jason Akumu Yongo to hold that evidence which does not accord with the particulars of the offence undermines the prosecution case.

While the law presumes that a person found shortly after a theft in possession of the stolen property, without plausible explanation, is the thief, that principle did not fit these facts. The robberies occurred on 22nd May 2000 while the recoveries were said to have been made after 14th June 2000. The recovery of the raincoat could not be attributed to any appellant since it was never established who dropped the bag. The recovery of the gun in the army compound rested on weak and incredible evidence, and the gun was not shown to have been stolen by these appellants.

No one witnessed the burglary, no one gave the number of intruders, and no form of identification of the appellants was available on that count. The recovery evidence linking the appellants to the stolen gun, raincoat and radio was weak: the raincoat could not be attributed to any appellant, and the gun's recovery in the army compound was based on incredible evidence. There were thus no credible circumstances connecting the appellants to the offence.

The court framed its jurisdiction by reference to section 361 of the Criminal Procedure Code, which bars second appeals on matters of fact, including severity of sentence. Citing M'Riungu v Republic, the court held it must resist treating findings of fact as holdings of law and interfere only where, on the evidence, no reasonable tribunal could have reached the conclusion below. The issues of identification, recent possession and sufficiency of evidence were treated as raising points of law.

The respondent, through Mr. Omirera, did not support the conviction on count III as it was unsupported by evidence. PW7's evidence that he was with PW5 in bed during the attack had been rejected as untrue, PW5 herself admitting she was not at home. The court accepted the concession, noting the 3rd appellant had been convicted under this count, and allowed all appellants' appeals on counts II and III.