Kemei & another v Republic (Criminal Appeal 117 of 2019) [2023] KECA 699 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery appeal, confirming convictions based on stolen items found on the appellants shortly after the robbery.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants were properly identified
- 2.Whether the doctrine of recent possession was proved
- 3.Whether the case against the appellants was proved beyond reasonable doubt
- 4.Whether the Court should interfere with the sentence of 20 years' imprisonment substituted for the death sentence
Key legal issues
#Identification of the appellants
The identification evidence was insufficient and unreliable; the first appellate judge correctly found it shaky, but the conviction stood on other grounds.
The witnesses were strangers to the appellants. PW1 switched on the light and was immediately attacked; PW2 and PW5 were blindfolded when brought into the lit room. No description of the assailants was given, the first report did not mention ability to identify, the duration of the sightings was not stated, and the intensity and layout of the lighting was not established, so the Turnbull quality of identification was poor.
Doctrine of recent possession
All four elements of the doctrine were proved against each appellant, justifying an inference of guilt.
The 1st appellant was found with a Nokia X2 phone identified as PW8's, and the 2nd appellant with Safaricom scratch cards identified as PW1's, hours after the robbery. Neither gave a sufficient explanation. Positive proof of possession, ownership, and recent theft satisfies the elements from Isaac Ng'ang'a, and the inference of guilt is permissive, not mandatory, per Kowkyk.
Proof of robbery with violence beyond reasonable doubt
The ingredients of section 296(2) were established and the concurrent findings of the two courts below would not be disturbed.
The prosecution need prove only one of the three elements. The assailants were armed with sticks, a panga and a knife; the appellants were in company of others; and PW1 was struck while PW2 and PW5 were blindfolded and tied, amounting to personal violence. The evidence was overwhelmingly credible on a question of fact not open to this second appeal.
Sentence
The learned Judge correctly applied Muruatetu as extended to section 296(2) by Kittiny in reducing the death sentence to 20 years' imprisonment; no interference was warranted.
Section 204 of the Penal Code was declared invalid in Muruatetu only insofar as it prescribed a mandatory death sentence for murder. Kittiny applied that holding mutatis mutandis to sections 296(2) and 297(2), making death a discretionary maximum. The High Court's substitution of 20 years took account of this development and mitigation.
Legal principles established
#- A second appellate court is confined to matters of law and must not interfere with concurrent findings of fact of the trial court and first appellate court unless no reasonable tribunal could have reached that conclusion.
- The death sentence under section 296(2) of the Penal Code is a discretionary maximum punishment, following Muruatetu.
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Quashing of conviction on the basis of poor identification
The single judge had found the eyewitness identification evidence shaky and unreliable, so nothing turned on identification; conviction rested on recent possession
Interference with the 20-year sentence substituted for the death sentence
The learned Judge had properly applied Muruatetu as extended by Kittiny to section 296(2)
Costs
No order as to costs is recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where the right of appeal is confined to the question of law, an appellate court has loyalty to accept the findings of fact of the lower courts and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the 1st appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision was bad in law.
The time the appellants spent with the witnesses was not stated. This in our view were not suficient circumstances for the witnesses to identify the appellants.
It follows that, any reasonable man would draw an inference of guilt based on the appellants' physical and actual possession of some of the stolen items as recovered from their person so immediately after the fact.
In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is ofiered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.
Thus, the sentence of death under section 296 (2) and 297(2) of the penal code is a discretionary maximum punishment.
For the foregoing reasons, we find no merit in the appeal before us. The appeal is dismissed. Orders accordingly.
Issues in the judgment
#The appeal number of the present appeal is not stated anywhere in the judgment
The quoted passage from M'Riungu reads 'loyalty' where 'duty' is expected, an apparent typographical irregularity within the quoted extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemei & another v Republic (Criminal Appeal 117 of 2019) [2023] KECA 699 (KLR)", Case Analysis (2023). Criminal Appeal (not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/699/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.