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Court of AppealPartially AllowedCriminal Appeal No. 52 of 2016

Silvian Ouma Owino & another v Republic [2019] KECA 541 (KLR)

Court of Appeal of Kenya
3 July 2019
5,260 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal freed two men because the trial court never let them plead to an amended charge and identification rested on mere suspicion.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against the High Court's dismissal of the appellants' first appeal against conviction for trafficking in 1565 stones of cannabis sativa contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act. The two central issues were a defective charge sheet and the identification of the appellants. On the charge sheet, the trial court amended the motor vehicle registration number after two prosecution witnesses had testified but did not read the amended charge to the appellants or take a fresh plea. The Court held that compliance with Section 214 of the Criminal Procedure Code is mandatory and that the failure to comply vitiated the trial, rejecting the respondent's argument that Section 382 cured the irregularity. On identification, the Court found that PW2 described no one repairing the puncture, PW3 chasing the vehicle never saw its occupants and gave no description of those who fled, and PW1 arrested the appellants merely because they looked suspicious. Applying Sawe and Wamunga, the Court held that suspicion however strong is not proof of identity, that there was no continuous and unbroken chase, and that the identification did not meet the required standard. The Court also set out conditions for credible identification based on a continuous chase. It allowed the appeal, quashed the convictions, set aside the sentences of a fine of one million shillings and thirty years' imprisonment, and ordered the appellants set at liberty unless otherwise lawfully held. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court's failure, upon amendment of the charge sheet, to read the amended charge to the appellants and take a fresh plea, in compliance with Section 214 of the Criminal Procedure Code, vitiated the trial
  2. 2.Whether the identification of the appellants based on an alleged continuous chase met the required legal standard
  3. 3.Whether the appellants' alleged violations of their constitutional right to a fair trial were established

Key legal issues

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01

Effect of non-compliance with Section 214 of the Criminal Procedure Code upon amendment of a charge

Holding

Failure to read the amended charge to the appellants and to take a fresh plea rendered the trial process defective and vitiated the trial

Reasoning

The proviso to Section 214 is in mandatory terms: upon alteration of a charge the court shall call upon the accused to plead afresh, and the accused may demand recall or further cross-examination of witnesses. The record showed the amended charge was not read and no fresh plea taken. Following Harrison Mirungu Njunguna and Yongo, this right goes to the root of a fair trial and is not curable under Section 382.

p. 6
02

Adequacy of identification evidence based on a continuous chase

Holding

The identification of the appellants failed to meet the required standard because the chase was not continuous and no witness never lost sight of them until arrest

Reasoning

PW2 gave no description of the persons repairing the puncture; PW3 chasing on a motorbike had not seen the occupants and gave no description of those who fled; PW1 arrested the appellants merely because they looked suspicious. The High Court would have found no continuous chase had it reassessed the evidence. The two courts below therefore erred in finding the chain of events unbroken.

p. 4
03

Second appeal confined to matters of law

Holding

As a second appeal, the Court was confined to questions of law and bound by concurrent findings of fact unless shown not to be based on evidence

Reasoning

Section 361 of the Criminal Procedure Code limits second appeals to matters of law; the court adopted the re-statement in Njoroge v Republic. It accepted the charge-sheet and identification grounds as questions of law, since the gravamen was that the first appellate court failed properly to evaluate the identification evidence.

p. 4

Legal principles established

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  • Compliance with Section 214 of the Criminal Procedure Code is mandatory: when a charge is altered or amended, the accused must be called upon to plead to the altered charge, and non-compliance vitiates the trial and cannot be cured by Section 382
  • Suspicion, however strong, cannot substitute for proof of identity or guilt beyond reasonable doubt
  • For identification based on a continuous chase to be positive and credible, the chase must be continuous and unbroken, the chaser must never lose sight of the suspect, and there must be consistency in the identity of the suspect through unique features

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence set aside
  4. 4.Appellants set at liberty unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisii
HC Cr. Appeal No. 150 of 2012
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law)

Relief refused

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Reliance on Section 382 of the Criminal Procedure Code to cure non-compliance with Section 214

The court held that compliance with Section 214 is mandatory and the failure to take a fresh plea was not a curable procedural technicality

p. 6

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that we hereby allow the appeal, quash the conviction and set aside the sentence meted upon the appellants.
p. 6Final orders - conviction quashed and sentence set aside
The appellants be and are hereby set at liberty unless otherwise lawfully held.
p. 6Final orders - release of the appellants
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
p. 4Suspicion is not proof
It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
p. 4Identification evidence standard (adopting Wamunga v Republic)
the right to hear the witness give evidence afresh on the amended charge or to cross examine the witnesses further is a basic right going to a root of a fair trial
p. 5Rights upon amendment of a charge
There must be consistency of the identity of the suspect during the continuous chase. Therefore the chaser must testify to a unique feature(s) of the suspect such as the clothing he was wearing or a distinctive physical feature(s).
p. 5Conditions for credible identification by continuous chase

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, "Silvian Ouma Owino & another v Republic [2019] KECA 541 (KLR)", Case Analysis (2019). Criminal Appeal No. 52 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/541/eng@2019-07-03

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