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Court of AppealPartially AllowedCriminal Appeal No. 46 of 2015· [2016] KECA 182 (KLR)

Thomas Odhiambo Agao v Republic [2016] KECA 182 (KLR)

Court of Appeal of Kenya

22 April 2016

ASAsike-Makhandia

W. Ouko KMK. M'inoti

1,266 words in judgment

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The bottom line

Kenya's Court of Appeal reduced a death sentence for robbery with violence to seven years because only one robber used violence.

What this practically means

Executive summary

This was a second appeal to the Court of Appeal at Mombasa by Thomas Odhiambo Agao, who had been convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death by the trial magistrate, with his first appeal dismissed by the High Court at Mombasa (Odero and Muya, JJ.) on 1st August 2014. Under section 361(1) of the Criminal Procedure Code, the Court confined itself to matters of law. Two issues arose: the sufficiency of the identification evidence, and whether the ingredients of robbery with violence were proved. On identification, both courts below had made concurrent factual findings that the well-lit street and the immediate chase and arrest allowed positive identification; the Court declined to disturb those findings. On the second issue, respondent's counsel conceded that the evidence disclosed only simple robbery, since the second person in the blue T-shirt, per the complainant's cross-examination, did nothing to the complainant. The Court emphasized that a concession does not bind it, but independently agreed: the essential ingredients of section 296(2) were not proved, and the offence disclosed was simple robbery under section 295 as read with section 296(1). The appeal was accordingly partially allowed: the conviction under section 296(2) was quashed and substituted with a conviction for robbery under section 295, and the death sentence was set aside and replaced with seven years' imprisonment running from the date of the trial court's sentence. No costs order was made. The judgment binds lower courts on the scope of second appeals and the non-binding nature of concessions.

Key legal issues

Scope of a second appeal

Holding

A second appeal is confined to matters of law only; concurrent factual findings of the courts below on identification will not be disturbed.

Reasoning

The Court invoked section 361(1) of the Criminal Procedure Code and Karingu vs R, holding that its mandate on second appeal is limited to questions of law. The High Court had satisfactorily re-evaluated the identification evidence, and the Court found no basis to disagree with the concurrent findings that the lighting and opportunity for identification were sufficient.

p. 1

Effect of a concession by respondent's counsel

Holding

A concession of appeal does not bind the court; the court must independently satisfy itself that the grounds for the concession are sound.

Reasoning

Respondent's counsel conceded the appeal on the ground that the evidence disclosed only simple robbery. The Court emphasized that it was not bound to accept the concession and examined the record itself. It then independently agreed that the evidence showed only the appellant used violence, the second person doing nothing to the complainant, so the ingredients of section 296(2) were not proved.

p. 2

Ingredients of robbery with violence under section 296(2)

Holding

Where the evidence shows only one offender used or threatened violence, the offence is simple robbery under section 295 as read with section 296(1), not robbery with violence under section 296(2); the conviction may be substituted accordingly.

Reasoning

The charge alleged the appellant was in the company of one other person who threatened actual violence. However, the complainant's testimony in cross-examination clarified that the second person in the blue T-shirt did nothing to her. The Court held the offence disclosed was simple robbery under section 295, and in exercise of its powers quashed the section 296(2) conviction and substituted one under section 295.

p. 2

Legal principles established

On a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal is confined to matters of law.
The Court is not bound by a concession of appeal by counsel; it must itself be satisfied that the grounds for concession are sound.

Court orders

1.Appeal allowed
2.Conviction for robbery with violence contrary to section 296(2) of the Penal Code quashed
3.Substituted with a conviction for robbery contrary to section 295 of the Penal Code
4.Death sentence set aside and substituted with a prison term of seven years from the date of sentence by the trial court

On appeal from: High Court of Kenya at Mombasa; Criminal Appeal No. 15 of 2013
Jurisdiction invoked: Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Thomas Odhiambo Agao v Republic [2016] KECA 182 (KLR)", Case Analysis (2016). Criminal Appeal No. 46 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/182/eng@2016-04-22

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