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Court of AppealDismissedCriminal Appeal (Nairobi High Court Criminal Appeal No. 311 of 2010)· [2022] KECA 37 (KLR)

Rashid & another v Republic (Criminal Appeal 118 of 2018) [2022] KECA 37 (KLR)

Court of Appeal of Kenya
4 February 2022
4,125 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 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

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Executive summary

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The appellants were convicted by the Principal Magistrate's Court at Kikuyu on three counts of robbery with violence contrary to Section 296(2) of the Penal Code, with alternative counts of handling stolen property, and sentenced to death. The High Court, on first appeal, upheld the convictions on counts 1 and 3, set aside the conviction on count 2, upheld the sentence on count 1 and suspended the sentence on count 3. On second appeal to the Court of Appeal, the appellants contended that the High Court had merely copied the trial court's judgment, that the visual identification was unreliable, that the doctrine of recent possession was misapplied, that the absence of the investigating officer left a fatal doubt, and that the death sentences were unconstitutional following Muruatetu. The Court, constrained by Section 361 of the Criminal Procedure Code to matters of law only, held that the High Court had discharged its first appellate duty, the two judgments being markedly different, and declined to disturb the concurrent findings of the two courts below on identification and recent possession. The recovered machine was positively identified by receipt and a distinguishing feature, and the appellants led police to other stolen items without explanation. Corroboration of the arresting officer was not required given Section 143 of the Evidence Act. On sentence, the Court relied on the Supreme Court's 2021 directions in Muruatetu (No. 2) holding that Muruatetu cannot directly be applied to mandatory death sentences for robbery with violence absent a proper constitutional challenge. The appeal was dismissed on 4th February 2022 by a bench of three Judges of Appeal.

Key legal issues

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01

Duty of the first appellate court

Holding

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.

Reasoning

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.

02

Visual identification and dock identification

Holding

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.

Reasoning

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.

p. 6
03

Doctrine of recent possession

Holding

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.

Reasoning

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.

p. 6
04

Number of witnesses

Holding

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.

Reasoning

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.

p. 7
05

Mandatory death sentence for robbery with violence

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Convictions on counts 1 and 3 and the sentence on count 1 as upheld by the High Court stand

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 322
  • Penal CodeSection 204
  • Penal CodeSection 297(2)
  • Penal CodeSection 40(3)
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 214(1)
  • Criminal Procedure CodeSection 169(1)
  • Evidence ActSection 143
  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Article 26

Cases cited (21)

  • Kiilu & another v Republic
    [2005] 1 KLR 174
  • Karianjah Waiganjo v R
    [2017] eKLR
  • Julius Kalewa Mutunga v Republic
    [2006] eKLR
  • January Makanta v Republic
    Criminal Appeal No. 194 of 2015
  • Francis Kariuki Njiru and others v R
    [2001] eKLR
  • John Wachira Wandia & another v Republic
    [2006] eKLR
  • Hassan Said v Republic
    Criminal Appeal No. 246 of 2015
  • Ajode v Republic
    [2004] eKLR
  • Gabriel Njoroge v Republic
    [1982-1988] 1 KAR 1134
  • David Arum Okullo & another v R
    [2007] eKLR
  • Philip Muiruri Ndaruga v Republic
    [2016] eKLR
  • Abanga alias Onyango v Republic
    Criminal Appeal No. 32 of 1990 (unreported)
  • Sawe v Republic
    [2003] KLR 203
  • Erick Otieno Arum v Republic
    [2006] eKLR
  • Ng'ang'a Kahiga v Republic
    Cr. App. No. 272 of 2005 (UR)
  • Isaac Ng'ang'a Kahiga & another v Republic
    [2006] eKLR
  • Hassan v Republic
    (2005) 2 KLR 11
  • Francis Karioko Muruatetu v Republic
    (2017) eKLR
  • William Okungu Kittiny v Republic
    [2018] eKLR
  • Chris Kasamba Karani v Republic
    [2010] eKLR
  • Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)
    [2021] eKLR
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

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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, "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.