Rashid & another v Republic (Criminal Appeal 118 of 2018) [2022] KECA 37 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery appeal, confirming that second appeals only examine legal errors and that Muruatetu does not automatically void death sentences for robbery.
What this practically means
#Executive summary
#Key legal issues
#Duty of the first appellate court
The High Court discharged its duty of re-evaluating the evidence and reaching independent conclusions; the copy-and-paste allegation failed because the two judgments were markedly different.
The Court compared the two judgments and found material differences: the lower court treated identification as dock identification while the judge made no such finding; the judge found PW1 and PW2 too traumatised to identify the robbers; and the judge gave the appellants the benefit of doubt on count 2. These differences demonstrated independent evaluation, defeating the allegation that the first appellate court merely copied the trial court's judgment.
Visual identification and dock identification
Identification by PW3 and PW4 was reliable: the electric light was on, the appellants were not disguised, and they took time with the victims, allowing ample opportunity for identification.
The Court found no evidence supporting the claim that the witnesses were too traumatised to identify the robbers. It declined to dwell on dock identification since the High Court made no finding of dock identification, and the electric light enabled PW3 and PW4 to see the faces of the robbers well. These were concurrent findings of the two courts below which the second appellate court could not disturb absent error of law.
Doctrine of recent possession
The doctrine was properly applied: the appellants were found with a machine identified by receipt and a distinguishing feature as stolen property, and led police to other stolen items without explanation.
The Court applied the four requirements from Isaac Ng'ang'a Kahiga: property found with the suspect, positively identified as the complainant's, stolen, and recently stolen. PW1 produced a receipt matching the model and serial numbers of the recovered machine and PW2 noted a missing rubber support. The appellants' failed explanation (that the machine was given by the 2nd appellant's mother to sell) and their leading police to a bush where stolen items were recovered, with no explanation of how they knew the location, established the presumption of fact under Hassan v Republic.
Number of witnesses
Corroboration of the arresting officer's evidence was not required; Section 143 of the Evidence Act abolishes any particular number of witnesses for proof of a fact.
The appellants contended that PW6's evidence ought to have been corroborated by the investigating officer and persons at the recovery scene. The Court held that the evidence of PW6 combined with the complainant's identification of the stolen items was sufficient for a safe conviction on counts 1 and 3 under the doctrine of recent possession. The claim of a fatal doubt arising from the absence of the investigating officer was rejected on the facts.
Mandatory death sentence for robbery with violence
Muruatetu cannot be invoked to invalidate the mandatory death sentence for robbery with violence; such a challenge must be properly mounted in the High Court and escalated to the Court of Appeal.
Although Kittiny had applied Muruatetu mutatis mutandis to Section 296(2), the Supreme Court's directions of 6th July 2021 clarified that Muruatetu applies only to murder, and that challenges to the mandatory death penalty for robbery with violence and attempted robbery with violence must be filed, presented and fully argued before the High Court and escalated to the Court of Appeal if necessary. Absent such a challenge here, the Court had no basis for interfering with the sentence imposed by the first appellate court.
Legal principles established
#- In a second appeal, the Court of Appeal considers only matters of law and will not interfere with concurrent factual findings of the two courts below unless they considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
- Muruatetu does not directly apply to mandatory sentences in offences other than murder; a challenge to the constitutional validity of the mandatory death penalty for robbery with violence must be properly filed, presented and fully argued before the High Court and escalated to the Court of Appeal if necessary.
Court orders
#- 1.The appeal is dismissed
- 2.Convictions on counts 1 and 3 and the sentence on count 1 as upheld by the High Court stand
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Criminal Appeal No. 311 of 2010
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid & another v Republic (Criminal Appeal 118 of 2018) [2022] KECA 37 (KLR)", Case Analysis (2022). Criminal Appeal (Nairobi High Court Criminal Appeal No. 311 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/37/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.