Richard Lenguro Ramacha & 2 others v Republic [2019] KECA 146 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of a second appeal under section 361 of the Criminal Procedure Code
The Court considers only matters of law and steers clear of issues of fact.
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.
Sufficiency of evidence against the 2nd and 3rd appellants
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.
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.
Doctrine of recent possession sustaining robbery with violence conviction against the 1st appellant
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.
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.
Notice and timeliness of the State's cross-appeal
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.
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.
Legal principles established
#- 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
#- 1.Conviction and sentence of the 1st appellant affirmed and his appeal dismissed
- 2.Conviction and sentence of the 2nd and 3rd appellants quashed and set aside
- 3.The 2nd and 3rd appellants to be forthwith set free unless otherwise lawfully held
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.