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Court of AppealPartially AllowedCriminal Appeal No. 74 of 2015· [2018] KECA 870 (KLR)

Patrick Kimanthi v Republic

Court of Appeal
26 January 2018
KKKihara KariukiWilliam OukoOukoM'M'inoti
4,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a robbery conviction and death sentence but quashed one conviction because prosecutors proved nothing about the phone's theft or ownership.

What this practically means

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Executive summary

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This is a second appeal by Patrick Kimanthi against his conviction by the trial court, upheld by the High Court (Achode & Mbogholi, JJ.), on two counts of robbery with violence, possession of public stores (handcuffs) and possession of suspected stolen property (a mobile phone). The appellant was arrested after hiring vehicles used in two daylight robberies in which victims withdrew cash from banks and were forcibly taken and robbed by men posing as police officers; he was identified by both victims at an identification parade. As a second appeal under Section 361 of the Criminal Procedure Code, the Court of Appeal confined itself to matters of law. The court held that the failure of one witness to give a prior description of the appellant did not vitiate the identification parade, following Nathan Kamau Mugwe; that concurrent findings that the witnesses did not see the appellant before the parade would not be disturbed; and that oral evidence of the vehicle hire, corroborated by witnesses placing the appellant in the vehicles, sufficiently proved possession. The court also found no misjoinder of charges under Section 135 of the CPC, the offences forming a series of similar character. However, the court quashed the conviction for possession of suspected stolen property because no evidence proved the mobile phone was stolen or to whom it belonged, the doctrine of recent possession requiring positive proof of all its elements. The appeal was accordingly allowed only to that extent and otherwise dismissed, with the death sentence for robbery with violence affirmed and other sentences held in abeyance. No costs order was made.

Key legal issues

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01

Sufficiency of identification-parade evidence

Holding

The failure by one witness (Hesbon) to give a prior description of the appellant did not vitiate the parade; the parade was properly conducted and the identification reliable.

Reasoning

The court adopted Nathan Kamau Mugwe: absence of prior description goes to weight, not admissibility. Concurrent findings of the two courts below that the witnesses did not see the appellant before the parade were not disturbed. The witnesses spent considerable time with the appellant in daylight and gave detailed accounts of his role, supporting positive identification.

p. 5
02

Proof of possession of the vehicles

Holding

Though there was no documentary lease agreement, oral evidence that the appellant hired the vehicles, corroborated by witnesses placing him in them, sufficiently proved possession.

Reasoning

Stephen's evidence that he hired the vehicles to the appellant was corroborated by Geoffrey and Hesbon who placed the appellant in the vehicles during the incidents. Stephen also orchestrated the ruse that led to the appellant's arrest, demonstrating the hiring relationship. The court looked at the totality of the evidence.

p. 6
03

Conviction on possession of suspected stolen mobile phone

Holding

Conviction quashed because no evidence proved the phone was stolen or to whom it belonged; the doctrine of recent possession was not satisfied.

Reasoning

Relying on Isaac Ng'ang'a Kahiga, the court held that recent possession requires positive proof that the property was found with the suspect, belonged to the complainant, and was recently stolen. No evidence was led on theft or ownership of the phone, so both the trial court and the High Court erred in upholding that conviction.

p. 7
04

Misjoinder of charges

Holding

There was no misjoinder; the offences formed part of a series of offences of the same or similar character under Section 135 of the CPC.

Reasoning

Section 135 permits joinder where offences are founded on the same facts or form a series of offences of the same or similar character. The offences used the same vehicles, were committed in Nairobi by the same person, and were of similar character, so no prejudice was occasioned to the appellant.

p. 7

Legal principles established

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  • In a second appeal under Section 361 of the Criminal Procedure Code, the Court of Appeal considers matters of law only.
  • Failure by a witness to give a prior description of a suspect does not necessarily vitiate an otherwise valid identification parade; it goes to weight.
  • Before the doctrine of recent possession can found a conviction, possession, ownership, theft and recency of the stolen property must all be positively proved.
  • Offences founded on the same facts or forming a series of offences of the same or similar character may properly be charged together under Section 135 of the Criminal Procedure Code.

Court orders

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  1. 1.Conviction for being in possession of a stolen mobile phone (contrary to Section 323 of the Penal Code) quashed
  2. 2.Appeal otherwise dismissed; conviction for robbery with violence and sentence of death affirmed, with sentences on other counts held in abeyance

Authorities

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Legislation

  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 135
  • Criminal Procedure CodeSection 150
  • Criminal Procedure CodeSection 26
  • Penal CodeSection 296(2)
  • Penal CodeSection 324(3)
  • Penal CodeSection 323
  • Evidence ActSection 48
  • Police Act (Cap 5)Section 5
  • Force Standing OrdersChapter 46, Standing Order 6(iv)(c)

Cases cited (10)

  • Dzombo Mataza vs. R
    [2014] eKLR

    Confines of second-appeal jurisdiction under Section 361 of the Criminal Procedure Code.

  • Okeno v Republic
    (1972) E.A. 32

    Matters of fact are for the trial court and first appellate court.

  • Gabriel Kamau Njoroge vs. Republic
    [1982-1988] 1 KAR 1134

    Witnesses should be asked to give a description of the person to be put on an identification parade.

  • Nathan Kamau Mugwe vs. Republic
    Criminal Appeal No. 63 of 2008

    Failure to give prior description does not invalidate an otherwise valid identification parade; goes to weight.

  • R vs. Turnbull and others
    (1976) 3 All ER 549

    Caution required where a case depends wholly or substantially on visual identification evidence.

  • David Mwita Wanja & 2 others vs. Republic
    [2007] eKLR

    Identification parades must be conducted with scrupulous fairness per Police Force Standing Orders.

  • R v Mwango s/o Manaa
    (1936) 3 EACA

    Value of identification evidence depreciates unless parade is fairly conducted.

  • Njihia vs. R
    [1986] KLR 422

    Properly conducted parades yield evidence of great value; badly conducted parades impair identification evidence.

  • Hassan vs. Republic
    [2005] 2 KLR 151

    Doctrine of recent possession raises a presumption of fact that the accused is a thief or receiver.

  • Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs. Republic
    [2006] eKLR

    Elements requiring positive proof before relying on the doctrine of recent possession.

On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 449 of 2007
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Patrick Kimanthi v Republic", Case Analysis (2018). Criminal Appeal No. 74 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/870/eng@2018-01-26

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