David Ochieng Akoko v Republic [2018] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a death sentence with 20 years' imprisonment for robbery, while quashing a separate stolen-property conviction for a police procedural error.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was properly convicted on the evidence of identification and the doctrine of recent possession
- 2.Whether the charge of robbery with violence was defective and whether its ingredients were proved
- 3.Whether the conviction and sentence on the second count of having suspected stolen property under section 323 of the Penal Code were sustainable
- 4.Whether the appellant was denied his right to mitigation and whether the mandatory death sentence was proper
Key legal issues
#Identification of recovered stolen goods and the doctrine of recent possession
The complainant positively identified the recovered goods as hers both at the appellant's house and at trial; possession of items stolen shortly after the robbery supported the inference that the appellant was one of the robbers
The High Court had found no direct identification of the appellant but relied on recovery of stolen items. The complainant identified distinguishing marks on the flowers, curtain, carpet and Bible. The Court of Appeal found the concurrent findings of the two lower courts on credibility and identification sound and declined to disturb them, holding that recent possession pointed to the appellant being one of the robbers rather than a mere handler.
Conviction under section 323 of the Penal Code (having suspected stolen property)
The ingredients of the offence were not established because the police were not acting under section 26 of the Criminal Procedure Code when they recovered the goods
Section 323 requires that the police act under section 26 of the Criminal Procedure Code, which confers power to stop, search and detain persons reasonably suspected of possessing suspected stolen property. Here the police testified that they acted on information and went to a house where they found the appellant and recovered the goods, not under section 26; consequently the offence was not made out and the conviction was quashed.
Ingredients of robbery with violence under section 296(2) of the Penal Code
The ingredients were established on the evidence: the robbers were three (in company) and the witnesses were injured during the robbery (personal violence)
Applying Oluoch v Republic, the Court noted that proof of any one of the statutory circumstances suffices. Two children who were in the house during the robbery testified that the robbers were three, and both were injured during the robbery, with P3 forms produced. This established the element of being in company and the use of personal violence, so the charge was not defective.
Mandatory death sentence and the right to mitigation
Had the trial magistrate had the benefit of the Muruatetu decision she would have exercised sentencing discretion; the death sentence was set aside and substituted with 20 years imprisonment
The Court noted the Supreme Court's decision in Muruatetu declaring the mandatory death sentence under section 204 of the Penal Code unconstitutional, and, following its own decision in William Okungu Kittiny, extended that reasoning to section 296(2). The claim of denial of mitigation was rejected on the record, but the sentence was varied retrospectively in light of the discretion now available.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law only, and the Court is bound by concurrent findings of fact of the two lower courts unless those findings were not based on evidence
- A charge of robbery with violence may be established if any one of the circumstances in section 296(2) of the Penal Code is proved: the offender is armed with a dangerous or offensive weapon, or is in the company of one or more persons, or immediately before or during the robbery wounds, beats or uses personal violence on any person
- The reasoning in Muruatetu on the unconstitutionality of the mandatory death sentence extends to the mandatory sentence under section 296(2) of the Penal Code, so a trial court should exercise discretion in sentencing for robbery with violence
Court orders
#- 1.Conviction on the second count (having suspected stolen property contrary to section 323 of the Penal Code) quashed
- 2.Sentence of three years imprisonment on the second count set aside
- 3.Appeal against sentence on count one allowed; sentence of death substituted with a sentence of 20 years imprisonment from the date of conviction by the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisii
- HCCRA No. 12 of 2011
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code, confined to matters of law only
Relief refused
#Quashing of conviction on the first count of robbery with violence
The concurrent findings of the two lower courts on identification of the stolen goods were sound and the ingredients of robbery with violence were established
Claim that the appellant was denied an opportunity to mitigate
The trial record showed the appellant was given an opportunity to mitigate but indicated he had nothing to say
Costs
No costs order recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above is that we allow the appellant's appeal against conviction to the extent of quashing the conviction on the second count, and setting aside the sentence of three years. We also allow the appeal against sentence in regard to count one and substitute the sentence of death with a sentence of 20 years imprisonment from the date of conviction by the trial court.
We bear in mind that this being a second appeal, it is confined to matters of law only, and that this Court is bound by the concurrent findings of fact made by the two lower courts, unless it is established that the findings were not based on evidence
the reasoning of the Supreme Court in Muruatetu decision can be extended to cover the mandatory sentence provided under Section 296(2) of the Penal Code
Therefore the police were not acting under section 26 of the Criminal Procedure Code, and consequently the ingredients of the offence under section 323 of the Penal Code was not established.
Issues in the judgment
#The judgment records the appellant's cited authority as 'James Karani M'ikombo versus Republic, Nyeri Civil Appeal No. 30 of 2010' although the appeal concerns criminal matters, suggesting a possible typographical error in the appeal number or nature (civil vs criminal)
The respondent's case name for the Supreme Court petition is rendered inconsistently ('versus R. & others'), and the Court of Appeal case 'Wiilam Okungu Kittiny' appears to contain a typographical error in the first name ('William')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Ochieng Akoko v Republic [2018] KECA 81 (KLR)", Case Analysis (2018). Criminal Appeal No. 185 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/81/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.