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Court of AppealDismissedCriminal Appeal No. 158 of 2014· [2015] KECA 707 (KLR)

John Muguthi Kangethe v Republic [2015] KECA 707 (KLR)

Court of Appeal
22 May 2015
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that showing a gun during a robbery completes robbery with violence, and upheld the conviction.

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 Nairobi by John Muguthi Kangethe against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and for unlawful possession of a firearm and ammunition without certificates under section 4 of the Firearms Act, following dismissal of his first appeal by the High Court (Mbogholi & Achode, JJ) on 29th October 2013. The appellant was sentenced to death on the robbery count and to concurrent terms of eight years on the firearm counts. Before the Court of Appeal, counsel argued that no offensive weapon was proved because the ballistics report was produced by Senior Sergeant Eustace Wahome rather than the firearms examiner who made it; that the charge was defective; that the ingredients of robbery with violence were absent; and that the evidence of PW 1 and PW 2 was inconsistent. The court, coram Kiage, Gatembu Kairu and Murgor, JJ.A, held in a single judgment of the court that its mandate on second appeal is confined to matters of law under section 361 of the Criminal Procedure Code, and that it would not disturb concurrent findings of fact that the appellant drew a gun on the complainant and demanded money. It held that section 77 of the Evidence Act does not require a ballistics report to be produced by its maker, and that being armed with a firearm completed the offence of robbery with violence. The appeal was dismissed in its entirety, affirming the decision of the High Court. No separate order as to costs was recorded.

Key legal issues

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01

Scope of the Court of Appeal's mandate on a second appeal

Holding

The court's mandate is confined to matters of law by section 361 of the Criminal Procedure Code; it will not interfere with concurrent findings of fact unless those findings are based on no evidence.

Reasoning

As a second appeal, the court applied the long-standing limitation in section 361 of the Criminal Procedure Code, adopting the test in Karingo v Republic that the question is whether there was any evidence on which the trial court could find as it did. Because the lower courts made concurrent findings that the appellant drew a gun and demanded money from the complainant, and those findings were supported by the evidence of PW 1 and PW 2, the court held there was no basis to interfere.

p. 4
02

Admissibility of a ballistics expert's report produced by a non-expert witness

Holding

Section 77 of the Evidence Act permits a ballistics report to be used in evidence and does not require production by the expert who made it; the trial court did not err in receiving the report through PW 3.

Reasoning

The court examined section 77 of the Evidence Act, which provides that a document purporting to be a ballistics expert's report may be used in criminal proceedings, that the court may presume the signature genuine, and that the court may summon the expert if it thinks fit. The court held there is no requirement that the report be produced by the expert, and noted the appellant never requested cross-examination of the maker. The gun was also identified in court by PW 1, so the complaint of no offensive weapon failed.

p. 4
03

Whether the ingredients of robbery with violence were established

Holding

The offence was complete: the appellant was armed with a pistol and used it to demand money from the complainant, satisfying the ingredient of being armed with a dangerous or offensive weapon.

Reasoning

Relying on Oluoch v Republic, the court reiterated the alternative ingredients of robbery with violence under section 296(2) of the Penal Code. The concurrent findings were that the appellant approached the complainant as he closed his shop, drew and showed a gun and demanded money. Being armed with the firearm alone completed the offence; it was unnecessary to prove the presence of companions or actual violence. The inconsistencies between PW 1 and PW 2 about the precise location were not material.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two lower courts unless those findings are based on no evidence.
  • Section 77 of the Evidence Act does not require a ballistics expert's report to be produced in court by the expert who made it; the report may be used in evidence and the court may presume the signature genuine, summoning the expert only if it thinks fit.
  • Robbery with violence is complete where the offender is armed with a dangerous or offensive weapon, or is in company with others, or uses personal violence at or immediately before or after the robbery - any one of these ingredients suffices.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction for robbery with violence and the sentences imposed by the lower courts are upheld (implied by dismissal of the appeal)

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Firearms Actsection 4
  • Evidence Actsection 77
  • Evidence Actsection 33
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 77

Cases cited (5)

  • Musee Joseph Musyoka vs. Republic
    Cr. Appeal No. 156 of 2013
  • Karingo vs. Republic
    [1982] KLR 213
  • Reuben Karari C/O Karanja vs. R
    (1956) 17 EACA 146
  • Oluoch vs. Republic
    [1985] KLR 549
  • Njoroge vs. R
    [1982] KLR 388
On appeal from
High Court of Kenya at Nairobi
HC. CR. A. NO. 322 OF 2006
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code, confined to matters of law

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, "John Muguthi Kangethe v Republic [2015] KECA 707 (KLR)", Case Analysis (2015). Criminal Appeal No. 158 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/707/eng@2015-05-22

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