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Court of AppealPartially AllowedCriminal Appeal No. 26 of 2016· [2020] KECA 931 (KLR)

Bonface Atondola Yabata v Republic

Court of Appeal of Kenya
31 January 2020
SKS. Gatembu KairuAMA.K. MurgorJMJamila Mohammed
2,542 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery conviction but replaced the mandatory death sentence with 25 years in prison.

What this practically means

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Executive summary

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The appellant was convicted by the Magistrate's Court at Kakamega on two counts of robbery with violence, based on both identification and the doctrine of recent possession. The High Court at Kakamega, on first appeal, upheld the convictions on the doctrine of recent possession alone, having found the complainants did not positively identify the appellant. On this second appeal, the Court of Appeal (Gatembu, Murgor & J. Mohammed, JJ.A) reiterated that its jurisdiction is confined under section 361(a) to matters of law and that it will not disturb concurrent findings of fact unless based on no evidence. The only issue was whether the prosecution proved its case, particularly whether the doctrine of recent possession was properly invoked. The Court was satisfied that stolen property was recovered from the appellant shortly after the robbery, positively identified by the complainants, and recently stolen from them; the appellant's defence that the items were planted and his bus ticket were disbelieved by the courts below. The Court upheld the convictions. On sentence, applying the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence under section 204 of the Penal Code unconstitutional, and this Court's own precedents extending that principle to section 296(2), the Court set aside the death sentence and substituted a custodial sentence of 25 years imprisonment from the date of conviction. The appeal was allowed to that extent only. No costs order was made.

Key legal issues

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01

Proper invocation of the doctrine of recent possession

Holding

The doctrine was properly invoked: the stolen property was found with the appellant shortly after the robbery, positively identified by the complainants, and recently stolen

Reasoning

The appellant was arrested about 5.30 a.m., some 200 metres from the scene, carrying a bag containing items the complainants identified as theirs. The High Court found no possibility the items were planted. The appellant's defence and bus ticket were disbelieved. Concurrent findings of fact, supported by evidence, cannot be disturbed on second appeal.

p. 4
02

Scope of second appeal under section 361

Holding

The Court's mandate is limited to matters of law; it may interfere only where the first appellate court considered matters it should not have, failed to consider matters it should have, or was plainly wrong

Reasoning

Relying on Njoroge and Chemagong, the Court reiterated that a second appeal tests whether there was evidence on which the trial court could find as it did. Where concurrent findings rest on evidence, the Court of Appeal has no basis for interference, as it found here regarding identification of the appellant's possession of stolen goods.

p. 2
03

Mandatory death sentence for robbery with violence

Holding

Following Muruatetu, the mandatory death sentence is unconstitutional; the Court set it aside and substituted 25 years imprisonment

Reasoning

The trial court imposed death as the only sentence available. The Supreme Court in Muruatetu declared the mandatory death sentence under section 204 of the Penal Code unconstitutional, and this Court has extended that principle to section 296(2). Considering mitigation - the appellant's family and time served - the Court substituted 25 years from the date of conviction.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and it will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence
  • For a conviction on the doctrine of recent possession, the stolen property must be found with the suspect, positively identified as the complainant's, and recently stolen
  • Following Muruatetu, the mandatory death sentence under section 296(2) of the Penal Code is no longer operative; courts may impose a discretionary sentence

Court orders

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  1. 1.Upheld the convictions on both counts of robbery with violence
  2. 2.Set aside the death sentence imposed by the trial court
  3. 3.Substituted a custodial sentence of 25 years imprisonment from the date of conviction by the trial court
  4. 4.Allowed the appeal to that extent only

Authorities

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Legislation

  • Penal Codesection 269(2)
  • Penal Codesection 322(1)(2)
  • Penal Codesection 204
  • Penal Codesection 296(2)
  • Criminal Procedure Code (implied by Section 361(a))section 361(a)

Cases cited (9)

  • Francis Karioko Muruatetu and another vs. Republic
    [2017] eKLR

    Declared the mandatory death sentence under section 204 of the Penal Code unconstitutional

  • David Mugo Kimunge vs. Republic
    [2015] eKLR

    Elements of the doctrine of recent possession (cited by appellant's counsel)

  • Njoroge vs. Republic
    [1982] KLR 388

    Limits of second appeal to matters of law

  • Chemagong vs. Republic
    [1984] KLR 611

    Circumstances in which a second appellate court may interfere

  • Karingo vs. Republic
    [1982] KLR 213

    Second appeal confined to points of law; non-interference with concurrent findings of fact unless based on no evidence

  • Reuben Karoti S/O Karanja versus Republic
    [1956] 17 EALA 146

    Test on second appeal is whether there was any evidence on which the trial court could find as it did

  • Isaac Wanga Kahiga alias Peter Nganga Kahiga vs. Republic
    Criminal Appeal No. 272 of 2005

    Doctrine of recent possession requirements

  • David Ochieng Akoko vs. Republic
    [2018] eKLR

    Applying Muruatetu to the mandatory sentence under section 296(2) of the Penal Code

  • Willam Okungu Kittiny
    Kisumu Criminal Appeal No. 56 of 2013

    Application of Muruatetu principle to mandatory sentences

On appeal from
High Court of Kenya at Kakamega
H.C.CR.APP. No. 208 of 2013
Jurisdiction invoked
Section 361(a) of the Criminal Procedure Code - second appeal confined 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, "Bonface Atondola Yabata v Republic", Case Analysis (2020). Criminal Appeal No. 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/931/eng@2020-01-31

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