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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 131 of 2015· [2019] KECA 793 (KLR)

Paul Mulinge & 1 other v Republic

Court of Appeal of Kenya
22 March 2019
4,325 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 upheld two robbery convictions based on possession of recently stolen items, but sent the men back for resentencing because they never got a chance to mitigate.

What this practically means

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Executive summary

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This was a second appeal by Paul Mulinge and Farouk Gitonga against the dismissal by the High Court (Mutuku & Korir, JJ) of their first appeals against convictions and death sentences for robbery with violence contrary to section 296(2) of the Penal Code. The charge arose from the robbery of a boda boda operator, Pius Munyua, of his motorcycle, a mobile phone and cash on 31st October 2011. The trial court convicted on the basis of identification by the complainant and the doctrine of recent possession; the first appellate court rejected the identification evidence but affirmed the convictions on the basis of recent possession of the phone and motorcycle key holder, recovered three days after the robbery. Before the Court of Appeal, counsel argued three grounds, contending that recent possession was wrongly applied, that the evidence of recovery was contradictory, and that the items were planted on the appellants by one Timona. The Court, confined by section 361(1) of the Criminal Procedure Code to matters of law, adopted the ingredients of the doctrine of recent possession from Issac Ng'ang'a Kahiga and Hassan, and held that all ingredients were satisfied: the property was found with the appellants, positively identified by the complainant, and recently stolen, with no reasonable explanation offered. The grudge allegation was dismissed as an afterthought never put in cross-examination. The Court affirmed the convictions but, applying Muruatetu, declined to substitute a sentence itself because no mitigation had ever been received, and remitted the matter to the High Court at Garissa for resentencing only within 14 days. The appeal therefore partially succeeded on sentence only.

Key legal issues

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01

Whether the doctrine of recent possession was properly applied to place the appellants at the scene of the robbery

Holding

Properly applied: the property was found with the appellants, positively identified by the complainant, and stolen only three days before recovery; no reasonable explanation was given for possession

Reasoning

The Court adopted the ingredients in Issac Ng'ang'a Kahiga and found each satisfied. Recovery of the phone and motorcycle key holder from the appellants was a concurrent finding of fact by the two courts below which the second appellate court would not disturb. The defences of planting by one Timona and a grudge between the 1st appellant and the complainant were rejected, the grudge being an afterthought never put in cross-examination.

p. 4
02

The scope of the second appeal under section 361(1) of the Criminal Procedure Code

Holding

The Court's mandate is limited to matters of law only; it will not interfere with concurrent factual findings unless the courts below misdirected themselves or were plainly wrong

Reasoning

Relying on Dzombo Mataza, Okeno and other authorities, the Court restated that in a second appeal matters of fact are for the trial and first appellate courts, and interference is warranted only where the conclusion is bad in law, i.e. no reasonable tribunal could have reached it on the evidence.

p. 3
03

Whether, having affirmed the convictions, the Court should interfere with the mandatory death sentence under Muruatetu

Holding

The Court declined to substitute a sentence itself and remitted the matter to the High Court at Garissa for resentencing only, because no mitigation had ever been received from the appellants

Reasoning

Surveying its own post-Muruatetu practice (Juma Anthony Kakai, Peter Mwania Munywoki, Bernad Mulwa Musyoka, Mohammed Hussein Mohammed, Yohana Hamisi Kyando), the Court held that whether to remit or to resentence itself depends on the peculiar circumstances of each case. Here, given the delay, the partial recovery of the stolen items and the absence of mitigation on record, remittal to the High Court was the just course.

p. 5

Legal principles established

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  • 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 those courts considered or failed to consider matters they should have, or were plainly wrong on the evidence
  • Before a court can rely on the doctrine of recent possession, there must be positive proof that the property was found with the suspect, that it is positively the complainant's property, and that it was recently stolen from the complainant
  • Where an accused is found in possession of recently stolen property with no reasonable explanation, a presumption of fact arises that he is either the thief or a receiver

Court orders

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  1. 1.Appellants' convictions for robbery with violence affirmed
  2. 2.Appeal against conviction dismissed
  3. 3.Matter remitted to the High Court at Garissa for resentencing only within 14 days of delivery of the judgment
On appeal from
High Court of Kenya at Nairobi
HC. CRA. NO. 84 OF 2012
Jurisdiction invoked
Section 361(1) 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, "Paul Mulinge & 1 other v Republic", Case Analysis (2019). Criminal Appeal No. 131 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/793/eng@2019-03-22

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