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Court of AppealDismissedCriminal Appeal No. 218 of 2010· [2015] KECA 712 (KLR)

Allan Ochieng Okeyo & another v Republic [2015] KECA 712 (KLR)

Court of Appeal
30 April 2015
3,635 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 small errors in a charge sheet will not overturn a conviction when the accused knew exactly what case they faced.

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 Mombasa against the dismissal by the High Court (Azangalala and Odero, JJ.) of the appellants' appeal against conviction and death sentence for robbery with violence contrary to section 296(2) of the Penal Code, following conviction by the Chief Magistrate's Court at Mombasa. The complainant, a messenger, was robbed of Kshs.220,000/- in broad daylight; Kshs.144,000/- was recovered at the scene and the appellants were caught red-handed in possession of a toy pistol and a knife. The Court of Appeal, exercising jurisdiction under section 361(1) of the Criminal Procedure Code confined to matters of law, rejected all four grounds urged: (1) the variance between the amount charged (Kshs.76,000/-) and the sum carried was a minor misdescription curable under section 382 of the Criminal Procedure Code, causing no prejudice; (2) the banking of amounts on the same day did not negative theft, as there was no evidence the bankings were simultaneous and the court declined to speculate on the origin of the unrecovered sum; (3) the identification was positive, the appellants having been caught in the very act a few steps from identifying witnesses, and the court would not disturb the concurrent findings of fact of the two lower courts; (4) the High Court, citing Ajode v Republic, had satisfactorily re-evaluated the evidence, and a first appellate court may rehash the trial court's conclusions provided it has considered the evidence for itself; finally, under section 143 of the Evidence Act no particular number of witnesses is required, and the eye-witness evidence being overwhelming, evidence from members of the public who effected the arrest would have been superfluous. The appeal was dismissed, affirming the High Court's decision.

Key legal issues

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01

Effect of variance between the amount stated in the charge sheet and the evidence led

Holding

The misdescription of the amount robbed was a minor defect curable under section 382 of the Criminal Procedure Code; no prejudice was occasioned to the appellants since they were aware of the case confronting them.

Reasoning

The complainant was robbed of Kshs.220,000/- of which Kshs.144,000/- was recovered after the robbery was complete and Kshs.76,000/- was never recovered. Ideally the appellants should have been charged with the entire sum, but the difference was a minor misdescription. The offence and particulars were clearly set out and the appellants knew the case against them, so no prejudice arose and the defect was curable under section 382.

p. 4
02

Whether the banking of the full sum on the day of the robbery negatived theft

Holding

There is no evidence the two bankings were simultaneous; the recovered sum was banked after police formalities and the unrecovered Kshs.76,000/- may have been taken by the escaping accomplice, so the court could not conclude the banked amount was the robbery proceeds.

Reasoning

While deposit slips showed Kshs.144,000/- and Kshs.76,000/- were banked on the day, evidence showed the recovered sum was banked only after the appellants were dealt with by police. The court declined to speculate on the origin of the banked Kshs.76,000/-, noting there could be a legitimate explanation not pursued by the prosecution.

p. 4
03

Identification of the appellants

Holding

Concurrent findings that the appellants were caught red-handed in broad daylight, a few steps from identifying witnesses and in possession of the weapons used, were based on proper evidence and could not be faulted on a second appeal.

Reasoning

The robbery occurred at about 1.15 p.m. in broad daylight; PW2 and PW3 were only steps away; the appellants were caught at the scene in the very act and found in possession of the toy pistol and knife. Their defences admitted presence at the scene and only raised mistaken identity, which the two lower courts rejected. No sufficient reason existed to fault these concurrent findings.

p. 5
04

Whether the High Court discharged its duty as first appellate court to re-evaluate the evidence

Holding

The High Court discharged that duty: it cited Ajode v Republic, dedicated much of its judgment to the evidence, considered the charge and identification, and satisfied itself on the correctness of the trial court's decision.

Reasoning

A first appellate court may reach the same conclusions as the trial court and even rehash them, provided it has considered the evidence on the basis of law and facts to satisfy itself on the correctness of the decision. The High Court here went through the evidence, considered the sustainability of the capital robbery charge and extensively considered identification, so the complaint was not merited.

p. 5
05

Whether failure to call members of the public who effected the arrest was fatal

Holding

Where eye-witness evidence is overwhelming, evidence of a member of the crowd would be superfluous; no particular number of witnesses is required to prove a fact under section 143 of the Evidence Act.

Reasoning

The court agreed with the respondent that the evidence on record was overwhelming, having been set out from the eye witnesses, and that a plethora of witnesses is not required. The holding in Bukenya & Another v Uganda on calling certain witnesses was distinguished on the facts: here the additional witnesses would have added nothing.

p. 5

Legal principles established

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  • On a second appeal under section 361(1) of the Criminal Procedure Code, only matters of law fall for consideration, unless irrelevant matters were considered or relevant matters were not considered, in which case those are treated as matters of law.
  • A first appellate court may come to the same conclusions as the trial court, and may rehash them, provided it is clear the court has considered the evidence on the basis of the law and facts to satisfy itself on the correctness of the decision.
  • An appellate court will not interfere with concurrent findings of fact by the two lower courts absent sufficient reason.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The dismissal of the appeal by the High Court is affirmed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 137
  • Criminal Procedure Codesection 382
  • 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 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, "Allan Ochieng Okeyo & another v Republic [2015] KECA 712 (KLR)", Case Analysis (2015). Criminal Appeal No. 218 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/712/eng@2015-04-30

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