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Court of AppealAllowedCriminal Appeal No. 45 of 2011· [2015] KECA 858 (KLR)

Kennedy Ochieng Okombo v Republic

Court of Appeal of Kenya
12 February 2015
2,927 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a robbery convict because police failed to hide his scar during an identification parade and a key witness was never called.

What this practically means

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Executive summary

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The appellant, Kennedy Ochieng Okombo, was convicted by the Principal Magistrate's Court at Oyugis on three counts of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court at Kisii (Asike Makhandia and R. Sitati, JJ) failed by judgment dated 15 March 2011, prompting this second appeal on four grounds, one of which was abandoned at the hearing. As a second appeal, the Court of Appeal was confined by Section 361(1)(a) of the Criminal Procedure Code to issues of law. Two issues of law were determined. First, although the identification parade was conducted over a month after the robbery, the fatal defect was that the appellant bore a scar above his left ear - the very feature witnesses used to identify him - and the police failed to take steps to conceal it as required by Rule 6(iv)(d) of The Force Standing Orders; the courts below misdirected themselves in treating the objection casually. Second, the doctrine of recent possession could not sustain the conviction because the mobile phone traced to the appellant had passed through the hands of an intermediary, Ben, who was never called as a witness, rendering the evidence hearsay and breaking the chain of causation. The State conceded the hearsay point. The appeal was allowed and the appellant ordered set free forthwith unless otherwise lawfully held.

Key legal issues

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01

Conduct of identification parade where the suspect bears a distinctive disfigurement

Holding

The parade was not properly conducted because the police failed to conceal the appellant's scar, which was the very feature used to identify him.

Reasoning

Rule 6(iv)(d) of The Force Standing Orders requires that a suspected person be placed among persons of similar appearance and, where he suffers a disfigurement, steps be taken to ensure it is not especially apparent. The appellant's scar above the left ear was a distinguishing feature relied on by the identifying witnesses, yet the police took no steps to conceal it. The courts below dealt with the issue casually, wrongly holding that people with similar scars could not be found.

p. 5
02

Recent possession where the recovered item passed through hands of uncalled witnesses

Holding

The doctrine of recent possession could not stand because the chain of the mobile phone's movement from the appellant was incomplete without the evidence of Ben, who was not called, making the evidence hearsay.

Reasoning

The evidence showed the phone was bought from Ken through a boy called Ben, who was never called as a witness. Without Ben's testimony the links in the chain of possession were unproven, creating a break in causation, and the courts below relied on hearsay. That broke the inference of constructive possession needed for the doctrine of recent possession.

p. 5
03

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

Holding

The court is confined to issues of law only, matters of fact having been tried and retried by the two courts below.

Reasoning

Section 361(1)(a) Criminal Procedure Code constrains the second appellate court to questions of law. The court framed its review of the facts only to determine whether the two courts below handled the case according to their mandate and whether issues of law arose. It followed John Gitonga alias Kados v Republic and M'Riungu v Republic on this limitation.

p. 2

Legal principles established

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  • On a second appeal the Court of Appeal is confined to issues of law and must not disturb concurrent findings of fact by the two courts below.
  • Where a suspect suffers from a disfigurement such as a scar, the police are in law required to take steps to ensure it is not especially apparent in an identification parade; failure to do so prejudices the suspect and renders the parade improperly conducted.
  • Where the chain of possession of a recovered stolen item includes an uncalled intermediary, reliance on that link amounts to hearsay and the doctrine of recent possession cannot be sustained.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The appellant shall be set free forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Kisii
Kisii HCCRA No. 55 of 2010
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code (second appeal limited to issues 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, "Kennedy Ochieng Okombo v Republic", Case Analysis (2015). Criminal Appeal No. 45 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/858/eng@2015-02-12

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