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Court of AppealDismissedCriminal Appeal No. 90 of 2016· [2019] KECA 220 (KLR)

Dan Kennedy Omondi v Republic [2019] KECA 220 (KLR)

Court of Appeal
8 November 2019
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that being caught with a stolen phone minutes after a robbery is powerful proof of guilt, and the death sentence remains available.

What this practically means

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Executive summary

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The Court of Appeal (Ouko, P, Karanja and Sichale, JJA) dismissed a second appeal by Dan Kennedy Omondi against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the death sentence. The appellant was convicted by the Senior Resident Magistrate's Court at Makadara on 30th November 2010, and his first appeal was dismissed by the High Court (Achode & Ngugi, JJ) on 11th December 2013. The appeal arose from the fatal shooting of the deceased on 10th December 2008 as he parked his vehicle at his gate; he was robbed of a Nokia 2100 mobile phone which had been positively identified by the seller who had marked and inscribed it. The phone was later traced to the appellant, whose sim card was inserted into it barely 18 minutes after the shooting. The appellant argued that possession of the phone was not conclusively proved and that the absence of a Safaricom witness and call data report was fatal to the prosecution. The court, sitting as a second appeal, reiterated that under section 361 of the CPC its jurisdiction is limited to matters of law, and that it must pay homage to concurrent findings of fact unless they are based on no evidence or a perversion of the evidence. It found the evidence of recent possession overwhelming and declined to disturb the findings. On sentence, it held that Muruatetu did not outlaw the death sentence but removed only its mandatory nature, and given the callous killing, dismissed the appeal on both conviction and sentence. It is so ordered.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

Section 361 of the CPC limits the second appeal to matters of law only; findings of fact by the trial court and first appellate court are conclusive unless shown to be based on no evidence, on a perversion of the evidence, or plainly wrong

Reasoning

The court cited its own decision in Dzombo Mataza to restate that on a second appeal it considers only matters of law. It may only intervene where the two courts below considered matters they should not have, failed to consider matters they should have, or were plainly wrong on the evidence. Having found no such misgivings, it declined to interfere with the concurrent findings.

p. 2
02

Recent possession of stolen property as proof of robbery with violence

Holding

The appellant's possession of the deceased's phone shortly after the fatal robbery, with the appellant's sim card inserted barely 18 minutes after the shooting, overwhelmingly established his guilt despite his denial and the absence of a Safaricom witness

Reasoning

The phone stolen from the deceased was traced to the appellant, whose sim card was inserted into it barely 18 minutes after the robbery. The phone was positively identified as the one sold to the deceased by PW2, who had marked and inscribed it. The court adopted the High Court's reasoning on recent possession and found the evidence overwhelming.

p. 2
03

Appropriate sentence for robbery with violence after Muruatetu

Holding

Muruatetu did not abolish the death sentence; it only removed its mandatory nature. Given the callous killing of the deceased, the death sentence for a first offender was not excessive

Reasoning

The appellant argued as a first offender that the death sentence was too severe. The court held that Muruatetu removed only the mandatory nature of the death penalty, leaving it available as a discretionary sentence. The offence involved gunning down a man who offered no resistance, in cold blood, and the court found the sentence justified.

p. 2

Legal principles established

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  • A second appellate court is confined to matters of law and will not disturb concurrent findings of fact unless based on no evidence, a perversion of the evidence, or unless no reasonable tribunal properly directing itself could reach such findings
  • The death sentence remains a lawful penalty for robbery with violence after Muruatetu, which only removed its mandatory nature

Court orders

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  1. 1.The appellant's appeal on both conviction and sentence is dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)(a)

Cases cited (4)

  • Dzombo Mataza vrs. Rep.
    [2014] eKLR
  • Okeno v. Republic
    [1972] E.A. 32
  • Adan Muragori Mungara v. Republic
    Criminal Appeal No. 347 of 2007 (Nyeri)
  • Francis Karioko Muruatetu & another vs. Republic
    [2017] eKLR
On appeal from
High Court of Kenya at Nairobi
HC. CRA No. 692 of 2010
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)

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, "Dan Kennedy Omondi v Republic [2019] KECA 220 (KLR)", Case Analysis (2019). Criminal Appeal No. 90 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/220/eng@2019-11-08

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