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Court of AppealPartially AllowedCriminal Appeal No. 187 of 2014

Jafred Onyango v Republic [2020] KECA 913 (KLR)

Court of Appeal of Kenya
31 January 2020
1,796 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 the robbery conviction but replaced the death sentence with 25 years in prison, applying the Muruatetu decision.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Makhandia, Kiage and Otieno-Odek, JJ.A.) heard the appellant's second appeal against conviction and sentence for robbery with violence contrary to section 296(2) of the Penal Code arising from a spate of robberies in Kakamega on the night of 11th to 12th February 2010. The appellant was arrested by police while fleeing with stolen household items, having been apprehended with the aid of a police dog shortly after the robberies. The trial magistrate convicted him on six counts and sentenced him to death on count 1; the High Court at Kakamega (Chitembwe and Jaden, JJ.) affirmed both conviction and sentence on 14th February 2013. The Court of Appeal, mindful that its second appellate jurisdiction under section 361 of the Criminal Procedure Code is confined to matters of law, held that the first appellate court had properly discharged its duty of re-evaluating the evidence. It found the identification at the locus in quo reliable and noted that the improperly conducted identification parade had already been discounted by the courts below. It adopted the four elements of the doctrine of recent possession from Isaac Ng'ang'a Kahiga v Republic and held they were fully satisfied, rendering the conviction safe. The appeal against conviction was therefore dismissed. However, applying Francis Karioko Muruatetu v Republic, the Court set aside the death sentence and substituted twenty-five years' imprisonment running from the date of the original sentence. The appeal was thus partially allowed as to sentence only.

Questions the Court framed

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

  1. 1.Whether the first appellate court failed in its duty to re-evaluate the evidence independently and arrive at its own conclusions
  2. 2.Whether the trial court and the Superior Court relied on inadmissible or insufficiently certain circumstantial evidence and identification evidence to found a conviction
  3. 3.Whether the identification parade was properly conducted
  4. 4.Whether the elements of the doctrine of recent possession were satisfied
  5. 5.Whether the mandatory death sentence was unconstitutional and whether the sentence imposed was manifestly harsh and excessive

Key legal issues

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01

Duty of the first appellate court

Holding

The High Court properly re-evaluated and re-appraised the evidence before affirming conviction; the second appellate court will not interfere

Reasoning

The Court found the learned Judges considered the evidence for themselves, re-evaluated and re-appraised it, and reached the conclusion that the appellant was properly convicted. Identification at the loci in quo was in favourable circumstances with sufficient lighting and by witnesses who knew the appellant, not single-witness identification under difficult conditions.

p. 2
02

Identification parade

Holding

The first appellate court did note that the identification parade was improper and the evidence thereof was properly discounted and disregarded

Reasoning

The appellant's complaint that the parade violated standing orders was unavailing because the courts below had already found the parade improper and excluded that evidence. The conviction rested on other evidence: visual identification and recent possession, not the parade.

p. 2
03

Doctrine of recent possession

Holding

The elements of recent possession were fully satisfied: the appellant was caught laden with items stolen shortly before, which were positively identified by their owners

Reasoning

The appellant was challenged by police barely a hundred metres from the scene, ran away while carrying the loot, and was apprehended with the aid of a police dog. The items recovered were positively identified by their owners as stolen in the robberies earlier that night, satisfying the requirements of the doctrine as articulated in Isaac Ng'ang'a Kahiga v Republic.

p. 2
04

Sentence

Holding

The death sentence was set aside and substituted with twenty-five years' imprisonment, running from the date the appellant was first sentenced

Reasoning

The Court accepted that the death sentence is no longer mandatory after Muruatetu. Although the prosecution urged that the offences were gruesome and deserved the death penalty, and noting that counsel had indicated no mitigation on record, the Court considered that justice would be served by a twenty-five year term backdated to the original sentence date.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the two courts below unless they are unsupported by evidence, based on a misapprehension of the evidence, or reached on wrong principles
  • 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, that it was stolen from the complainant, and that it was recently stolen, with proof as to time depending on the ease with which the property can move from person to person
  • Following Muruatetu, the death sentence is no longer mandatory for capital offences; courts retain discretion to impose the proper sentence in the circumstances of each case

Court orders

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  1. 1.Sentence of death set aside and substituted with a sentence of twenty-five (25) years in prison to run from the date the appellant was first sentenced
  2. 2.The appeal dismissed save as to sentence

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kakamega
HCCRA No. 24 of 2011
Jurisdiction invoked
Second appeal under section 361(a) and (b) of the Criminal Procedure Code, limited to matters of law

Relief refused

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Quashing of the conviction and setting the appellant at liberty

Conviction was safe; identification evidence and recent possession doctrine fully established guilt

p. 3

Complaint that the first appellate court failed to re-evaluate the evidence

The learned Judges discharged their first appellate duty properly and effectively

p. 2

Costs

No costs order was 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.

In the premises, the appellant’s conviction was safe and we have no basis upon which we can interfere with the same.
p. 3Safety of conviction; non-interference with concurrent findings
It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.
p. 2Doctrine of recent possession - requirements
This was not the identification of a single witness under difficult circumstances but multiple ones in favourable circumstances.
p. 2Visual identification evidence
justice would be served by a setting aside of the sentence of death and substituting it with a sentence of twenty-five (25) years in prison to run from the date the appellant was first sentenced. And we so order.
p. 3Final orders - substitution of sentence
Save as to sentence above, the appeal is without merit and is accordingly dismissed.
p. 3Disposition - appeal against conviction dismissed

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, "Jafred Onyango v Republic [2020] KECA 913 (KLR)", Case Analysis (2020). Criminal Appeal No. 187 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/913/eng@2020-02-07

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