Richard Lenguro Ramacha & 2 others v Republic [2019] KECA 138 (KLR)
The bottom line
#Kenya's Court of Appeal freed two men convicted of handling stolen goods found in another person's house, but kept one man's 7-year sentence.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under section 361 of the Criminal Procedure Code
The Court of Appeal on a second appeal considers only matters of law and will not interfere with concurrent findings of fact unless based on no evidence, misapprehension of evidence, or wrong principles
The court invoked section 361(1)(a) of the Criminal Procedure Code and the decisions in David Njoroge Macharia, Chemagong and Kaingo to frame its mandate. It then reviewed the entire evidence to determine whether the two courts below exercised their mandate as stipulated by law, before finding that both erred in evaluating the evidence against the 2nd and 3rd appellants.
Possession of stolen goods by the 1st appellant
The conviction of the 1st appellant on the alternative charge of handling stolen goods was safe because the stolen items were found in his house, placing them in his possession and control
The court agreed with the first appellate court's finding that the stolen handbag and lady's suit, recovered from the 1st appellant's house following a tip off and identified by the complainant, were in his possession and control. Section 4(a) of the Penal Code covers knowingly having items in a place for one's use or benefit, supporting the conviction and 7-year sentence.
Sufficiency of evidence against the 2nd appellant
The evidence against the 2nd appellant, comprising only a sighting of him fleeing the 1st appellant's house by a witness who did not know him, with no identification parade and unexplained arrest circumstances, was insufficient for proof beyond reasonable doubt
The only evidence was P.W.5's testimony that he saw the 2nd appellant running from the house; P.W.5 did not know him, did not know how or where he was later arrested, and noted a change in hairstyle. With no identification parade and unexplained time and place of arrest, the conviction could not stand on proof beyond reasonable doubt.
Knowledge as an element of handling stolen goods for the 3rd appellant
Mere presence in another person's house does not establish knowledge that stolen items therein were unlawfully obtained; the conviction of the 3rd appellant was unsafe for lack of proof of knowledge
The court questioned whether the 3rd appellant could be said to be in possession of items found in a house that was not his, and whether he had been there since the robbery. Applying section 4(a) and (b) of the Penal Code, joint or constructive possession requires knowledge and consent; without evidence of knowledge of the stolen items, the conviction was unsafe.
Non-application of the doctrine of recent possession
The doctrine of recent possession was correctly not applied to the robbery charge because the stolen items were recovered about two months after the robbery and could have changed hands
The robbery occurred on 31st January 2009 and the items were recovered on 26th March 2009. The court, aligning with the State's submission, accepted that the lapse of about two months meant the items could have changed hands, so the High Court was correct in not applying the doctrine of recent possession to the robbery with violence charge.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles
- Joint possession under section 4(b) of the Penal Code requires proof of knowledge and consent; an accused found in another person's house cannot be convicted of handling stolen goods without proof of knowledge that the items were stolen
- Where a witness does not know an accused and no identification parade is conducted, and the time and place of the accused's arrest are unexplained, the evidence is insufficient for proof beyond reasonable doubt
Court orders
#- 1.Appeal of the 1st appellant (Richard Lenguro Ramacha) dismissed; his conviction and sentence of 7 years imprisonment affirmed
- 2.Convictions and sentences of the 2nd and 3rd appellants (Lonkiya Lelikat and Jacob Lelemeuwa) quashed and set aside
- 3.The 2nd and 3rd appellants to be forthwith released unless otherwise lawfully held
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A No. 30 of 2011
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code - second appeal confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Lenguro Ramacha & 2 others v Republic [2019] KECA 138 (KLR)", Case Analysis (2019). Criminal Appeal No. 112 of 2013 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/138/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.