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Court of AppealDismissedCriminal Appeal (not expressly numbered in the judgment; appeal from Kakamega High Court Criminal Appeal No. 76 of 2016)

Akanga v Republic (Criminal Appeal 15 of 2018) [2024] KECA 1457 (KLR)

Court of Appeal of Kenya
18 October 2024
3,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that being found with a stolen phone hours after a robbery can sustain a conviction, and the death sentence stands.

What this practically means

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Executive summary

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The appellant, Boniface Akanga, was convicted of four counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death by the Senior Resident Magistrate's Court at Hamisi. His first appeal to the High Court at Kakamega (Criminal Appeal No. 76 of 2016, judgment of 15th November 2017) partially succeeded: Counts I, III and IV were quashed because the recovered items were not positively identified as the complainants' property and the doctrine of recent possession could not apply to the attempted robbery, but the conviction and sentence on Count II, concerning PW2's Samsung phone, were upheld. On second appeal to the Court of Appeal at Kisumu, the appellant challenged the language and judgment-writing compliance with sections 198 and 169 of the Criminal Procedure Code, his article 50 constitutional rights, the application of the doctrine of recent possession, the rejection of his alibi, and the death sentence. The Court reiterated that a second appeal is confined to points of law and will not disturb concurrent findings not based on no evidence. It declined to entertain the section 198/article 50 ground as it was raised for the first time on second appeal. Applying Eric Otieno Arum, the Court found the primary facts of recent possession proved: PW2 identified her phone, it was recovered from the appellant within about five hours of the robbery, and he offered no plausible explanation. The death sentence was affirmed as lawful following Muruatetu II, and the sentencing ground failed as it had not been raised in the High Court. The appeal was dismissed in its entirety.

Questions the Court framed

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

  1. 1.Whether the trial complied with section 198 of the Criminal Procedure Code on the language of the trial and the appellant's rights under article 50(2)(c) and (j) of the Constitution
  2. 2.Whether the courts below failed to comply with section 169(2) and (3) of the Criminal Procedure Code in their judgments
  3. 3.Whether the High Court erred in upholding the conviction on Count II on the basis of the doctrine of recent possession
  4. 4.Whether the appellant's alibi defence was wrongly disregarded
  5. 5.Whether the death sentence was manifestly excessive or should have been interfered with

Key legal issues

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01

Application of the doctrine of recent possession to sustain conviction on Count II

Holding

The conviction on Count II was sound: PW2's Samsung phone was positively identified, recovered from the appellant within hours of the robbery, and the appellant gave no plausible explanation for his possession of it.

Reasoning

The Court adopted the Arum test requiring proof that the property was found with the suspect, was positively the complainant's property, and had been recently stolen. The High Court found PW2 identified her phone and the investigating officer recovered it from the appellant within about five hours. Once those primary facts were established, the evidential burden shifted to the appellant under section 111 of the Evidence Act, and his bare denial did not discharge it.

p. 6
02

Second appeal confined to points of law

Holding

Concurrent findings of the two courts below were not disturbed absent proof they were based on no evidence.

Reasoning

Citing Karingo & 2 Others v Republic, the Court reiterated that on a second appeal it considers only matters of law and asks whether there was any evidence on which the trial court could have found as it did. Since the evidence established the robbery and the recent possession of the identified stolen phone, the concurrent findings stood.

p. 3
03

Sentence

Holding

The death sentence is lawful for robbery with violence and was not interfered with; the sentencing ground also failed because it was raised for the first time on second appeal.

Reasoning

Section 296(2) of the Penal Code prescribes death for robbery with violence. Following Muruatetu II the sentence remains legal. Additionally, the issue of sentence was never raised before the High Court, so a second appellate court could not entertain it. The ingredients of the offence having been proved, there was no lawful reason to interfere.

p. 6

Legal principles established

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  • On a second appeal the Court is confined to points of law and will not interfere with concurrent findings of the two lower courts unless based on no evidence.
  • Before a conviction may rest on the doctrine of recent possession, the possession must be positively proved and the property positively identified as that of the complainant and recently stolen from them; the burden then shifts to the accused to give a plausible explanation.
  • The elements of robbery with violence under section 296(2) of the Penal Code are read disjunctively; proof of any one element suffices.
  • The death sentence for robbery with violence under section 296(2) of the Penal Code remains lawful following Muruatetu II.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The judgment of the High Court upholding the conviction and sentence is upheld
  3. 3.The death sentence is affirmed

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kakamega
Criminal Appeal No. 76 of 2016
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, confined to matters of law

Relief refused

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Setting aside the conviction on Count II based on the doctrine of recent possession

The prosecution established the primary facts and the appellant offered no plausible explanation for possession of the recently stolen phone

p. 6

Interference with the death sentence

The sentence issue was never raised in the High Court and the death penalty remains lawful for robbery with violence

p. 6

Consideration of the section 198 Criminal Procedure Code / article 50 ground

The ground was not raised at the first appeal and the respondent did not address it, leaving the Court no basis to determine it

p. 4

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.

This being a second appeal, we are mindful that we must only be confined to points of law; and this Court will not interfere with concurrent findings of the two courts below unless based on no evidence.
p. 3Scope of second appeal
Before a court of law can rely on the doctrine of recent possession as a basis for conviction, the possession must be positively proved.
p. 6Doctrine of recent possession
This being a 2nd appeal the appellant cannot now turn around and ask this Court to make a finding on sentencing when it was never raised in the High Court.
p. 6Sentence ground raised for the first time on second appeal
Consequently, we find that this appeal lacks merit; we uphold the judgment of the High Court and afirm the death sentence. The appeal is thus dismissed in its entirety.
p. 6Disposition / final orders

Issues in the judgment

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minor

The Court of Appeal number of this appeal is not stated in the judgment itself; only the High Court appeal number (Criminal Appeal No. 76 of 2016) is given.

minor

The quotation in paragraph 25 attributing sentencing principles to the respondent's submissions appears to conflate the respondent's citation of Nillson v Republic and Ogalo s/o Owuora v Republic with argument text, blending quoted authority and submissions.

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, "Akanga v Republic (Criminal Appeal 15 of 2018) [2024] KECA 1457 (KLR)", Case Analysis (2024). Criminal Appeal (not expressly numbered in the judgment; appeal from Kakamega High Court Criminal Appeal No. 76 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1457/eng@2024-10-18

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