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Court of AppealDismissedCriminal Appeal No. 109 of 2014· [2017] KECA 153 (KLR)

Lukas Kerario Sangai v Republic [2017] KECA 153 (KLR)

Court of Appeal of Kenya
20 July 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
2,145 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery conviction because the accused had a stolen phone and no explanation for it.

What this practically means

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Executive summary

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This is a second appeal by Lukas Kerario Sangai against his conviction for robbery with violence contrary to Section 296(2) of the Penal Code and sentence of death. The appellant was convicted by the Senior Resident Magistrate's Court at Kehancha on 9th December 2010 on the doctrine of recent possession, after a Nokia 1100 mobile phone stolen from the complainant was recovered from him shortly after the robbery. The High Court at Kisii (Makhandia & Sitati, JJ) upheld the conviction on 23rd September 2011. On second appeal, counsel for the appellant abandoned all grounds except the contention that the High Court failed properly to evaluate the evidence and erred in upholding a conviction resting on a single witness and the doctrine of recent possession, pointing to inconsistencies between PW1 and PW2 on where the phone was recovered and doubts about the identification marks on the phone. The Court of Appeal (Musinga, Gatembu Kairu and Murgor, JJA) held in a single judgment that a second appeal lies on matters of law only under Section 361 of the Criminal Procedure Code, that the High Court had duly re-evaluated the evidence as required by Okeno v R, and that concurrent findings of fact by the lower courts could not be disturbed. The phone was recovered from the appellant moments after the robbery and he offered no explanation for his possession of it, so the doctrine of recent possession was properly invoked. The complaint about presentation to court 9 days after arrest failed because the offence predated the 2010 Constitution, under which the permissible period for a capital charge was 14 days. The appeal was dismissed on 20th July 2017.

Key legal issues

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01

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

Only issues of law may be raised and considered in a second appeal; the Court does not re-appraise facts except where the first appellate court failed to re-evaluate the evidence.

Reasoning

Section 361 of the Criminal Procedure Code limits the grounds of a second appeal to matters of law. The Court noted that the High Court, as first appellate court, was obliged to review and re-evaluate the evidence and draw its own conclusions, per Okeno v R. The complaint that the High Court failed properly to evaluate the evidence is a question of law and therefore properly before the Court.

p. 2
02

Whether the doctrine of recent possession was properly invoked

Holding

Yes. The mobile phone stolen from the complainant was recovered from the appellant moments after the robbery, positively identified by the complainant through initials and payroll number inscribed in the battery slot, and the appellant offered no explanation for his possession of it.

Reasoning

The trial court and the High Court made concurrent findings that the appellant was found in possession of the complainant's phone shortly after the robbery. The complainant identified the phone by marks he had made inside the battery slot. The appellant denied the offence but gave no explanation for possession. The alleged inconsistencies between PW1 and PW2 on where the phone was recovered did not undermine these concurrent findings, which the Court could not disturb.

p. 4
03

Delay in presenting the appellant to court after arrest

Holding

The complaint fails because the offence was committed before the Constitution of Kenya, 2010 was promulgated, and under the old Constitution an arrestee on a capital charge could be held for up to 14 days before being brought to court.

Reasoning

Counsel argued the appellant was presented to court 9 days after arrest, contravening the 24-hour rule. The Court held the robbery occurred in February 2010, before the promulgation of the 2010 Constitution. Under the old Constitution, a person arrested on reasonable suspicion of committing an offence punishable by death had to be brought to court within 14 days. Nine days was therefore within the permissible period.

p. 4

Legal principles established

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  • A second appeal to the Court of Appeal is confined to matters of law only
  • The Court of Appeal will not interfere with concurrent findings of fact by the two lower courts unless they are based on no evidence, a perversion of the evidence, or are findings no properly directing tribunal would make
  • Where an accused is found in possession of recently stolen property and offers no explanation, the inevitable inference is that he was the thief

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Orders accordingly

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Criminal Procedure CodeSection 361
  • Constitution of Kenya, 2010promulgation (referred to generally)
  • Former Constitution of Kenya (repealed)provision on presentation of arrested persons to court within 14 days (referred to generally)

Cases cited (3)

  • M. Riungu v. Republic
    [1983] KLR 455
  • Okeno vs. R
    [1972] E.A 32
  • Adan Muraguri Mungara vs. R
    [2010] eKLR
On appeal from
High Court of Kenya at Kisii
H.C.CR.A No. 257 of 2010
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lukas Kerario Sangai v Republic [2017] KECA 153 (KLR)", Case Analysis (2017). Criminal Appeal No. 109 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/153/eng@2017-07-20

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