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Court of AppealPartially AllowedCriminal Appeal No. 113 of 2013 (R)· [2019] KECA 146 (KLR)

Richard Lenguro Ramacha & 2 others v Republic [2019] KECA 146 (KLR)

Court of Appeal
21 November 2019
2,868 words in judgment
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The bottom line

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Kenya's Court of Appeal freed two men convicted of robbery with violence for lack of identification evidence, while upholding the third man's conviction based on stolen items found in his house.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal at Nakuru (Gatembu Kairu, Sichale and ole Kantai, JJ.A) against the High Court's judgment of 31st May 2013 (Wendoh & Emukule, JJ), which had dismissed the appellants' first appeal but allowed the State's cross-appeal, quashed their convictions on the alternative charge of handling stolen goods, and instead convicted each of robbery with violence, sentencing them to 35 years' imprisonment. The appellants raised three grounds: that the High Court should have ordered a retrial rather than substitute convictions based on the doctrine of recent possession; that the cross-appeal was time-barred and unserved on the 2nd and 3rd appellants; and that identification evidence was defective. The Court, confined by Section 361 of the Criminal Procedure Code to matters of law, found that the stolen items were recovered in the 1st appellant's house only hours after the robbery, that he offered no explanation, and that he was armed with the charged firearms, so the ingredients of robbery with violence were established and his conviction and enhanced sentence were affirmed. However, the convictions of the 2nd and 3rd appellants were found unsafe: P.W.3 stated he did not see the 3rd appellant in the house on the material date, the safari boots bore no identifying marks, and no witness testified to the 2nd appellant's arrest or presence at the house. The Court allowed the appeal in part, quashing the 2nd and 3rd appellants' convictions and sentences and ordering their immediate release, while dismissing the 1st appellant's appeal. No costs order was made.

Key legal issues

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01

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

Holding

The Court considers only matters of law and steers clear of issues of fact.

Reasoning

Section 361(1)(a) enjoins the Court of Appeal on a second appeal to consider only matters of law, and severity of sentence is a matter of fact. The Court invoked Kados v Republic and David Njoroge Macharia v Republic to confirm it would not disturb concurrent factual findings unless they were based on no evidence, misapprehension of evidence, or wrong principles. Within that constraint, the Court examined whether the identification evidence could sustain the 2nd and 3rd appellants' convictions.

p. 3
02

Sufficiency of evidence against the 2nd and 3rd appellants

Holding

Their convictions were unsafe: the 3rd appellant was not positively placed in the house with the stolen items, and the 2nd appellant's arrest circumstances were unproven.

Reasoning

The recovered items were found in the 1st appellant's house. P.W.3, a search-team member, stated he did not see the 3rd appellant in the house on 26th March 2009, and the safari boots had no identifying marks. The 2nd appellant was arrested later and no witness testified to his arrest or presence in the house. Identification being absent, the convictions could not stand despite the recent possession doctrine applying to the 1st appellant.

p. 4
03

Doctrine of recent possession sustaining robbery with violence conviction against the 1st appellant

Holding

Recent possession of stolen items found in the 1st appellant's house hours after the robbery, with no explanation and while armed, proved robbery with violence.

Reasoning

The robbery occurred in the early hours of 26th March 2009 and the stolen phones, suit and safari boots were recovered in the 1st appellant's house barely hours later. He gave no reasonable explanation for their presence and was armed with the firearms charged in counts III & IV. The High Court was thus entitled, on the State's cross-appeal, to convict him of robbery with violence and enhance the sentence to 35 years.

p. 4
04

Notice and timeliness of the State's cross-appeal

Holding

The cross-appeal was properly before the High Court; the record shows the application to file it was made in the presence of the appellants' counsel and allowed.

Reasoning

The appellants argued the cross-appeal was time-barred under Section 349 CPC and that the 2nd and 3rd appellants were never served. The Court found, on the record, that on 26th July 2012 the State applied to file the cross-appeal, Mr. Kipkenei for the appellants opposed it, and the court allowed it. This defeated the contention of want of notice, and the enhancement of sentence fell within the High Court's powers under Section 354 CPC as the State contended.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law under section 361 of the Criminal Procedure Code and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
  • Where stolen items from a robbery are found shortly afterwards in an accused's possession or premises without a reasonable explanation, the doctrine of recent possession may establish robbery with violence, including where the accused was armed.

Court orders

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  1. 1.Conviction and sentence of the 1st appellant affirmed and his appeal dismissed
  2. 2.Conviction and sentence of the 2nd and 3rd appellants quashed and set aside
  3. 3.The 2nd and 3rd appellants to be forthwith set free unless otherwise lawfully held

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 322
  • Penal CodeSection 89(1)
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 349
  • Criminal Procedure CodeSection 354
  • Criminal Procedure CodeSection 87(a)
  • Criminal Procedure CodeSection 7

Cases cited (3)

  • Kados vs. Republic
    Nyeri Cr. Appeal No. 149 of 2006 (UR)
  • David Njoroge Macharia vs. Republic
    [2011] eKLR
  • Chemagong vs. Republic
    [1984] KLR 213
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A No. 417, 420 & 421 of 2010
Jurisdiction invoked
Section 361(1)(a) 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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Cite this brief

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Cite this brief

Caselaw, "Richard Lenguro Ramacha & 2 others v Republic [2019] KECA 146 (KLR)", Case Analysis (2019). Criminal Appeal No. 113 of 2013 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/146/eng@2019-11-21

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