Kabacho & another v Republic

Jurisdiction 5. Being a second appeal, the jurisdiction of this Court is limited by section 361(1) of the Criminal Procedure Code to matters of law only. Concurrent ndings of fact by the two courts below are binding on this Court unless it is demonstrated that those ndings were based on no evidence, were founded upon a misapprehension of the evidence, or were reached through the application of wrong legal principles. 6. The rationale for this limitation is well settled. The trial court has the unique advantage of seeing and hearing the witnesses, while the rst appellate court is under a duty to re-evaluate the evidence and draw its own conclusions. A second appellate court does not embark upon a third factual inquiry; it intervenes only where an error of law has occasioned a miscarriage of justice. See MGK vs. Republic [2020] KECA 84 (KLR). 7. Whether the evidence establishes the ingredients of an oence, whether the applicable legal principles were correctly applied, whether constitutional safeguards were observed, and whether a sentence is lawful are all questions of law falling within our jurisdiction. Equally, concurrent ndings that are unsupported by the evidence, are plainly unreasonable, or result from the application of erroneous legal principles become reviewable as questions of law. Background 8. The prosecution case was that on the night of 1st September 2013, a gang of armed men violently broke into the complainants’ residence. The assailants were armed with pangas, rungus and other oensive weapons. The complainants were assaulted, robbed of household items, electronic appliances, mobile phones and money. One of the female complainants was sexually assaulted by the 2nd Appellant. 9. Investigations led to the arrest of both appellants. Against the 1st appellant the prosecution relied principally on visual identication and evidence linking him to recently stolen property. Against the 2nd appellant, the prosecution relied on visual recognition by several witnesses and the complainant’s testimony concerning the oence of rape. 10. Both appellants denied participation and maintained that they had been wrongly implicated. The trial court accepted the prosecution evidence, rejected the defences and convicted them as charged. On rst appeal the High Court independently re- evaluated the evidence and held that the oences of robbery with violence had been proven beyond reasonable doubt against both appellants. The High Court, however, found that the evidence did not support the conviction of the 2nd appellant for rape and quashed that conviction. The Appeal 11. From the memorandum of appeal and the submissions, the appeal raises four principal questions of law: a. Whether the prosecution proved all the essential ingredients of the oence of robbery with violence under section 296(2) of the Penal Code; b. Whether the evidence identifying the appellants as participants in the robbery met the legal threshold required in criminal proceedings; c. Whether the courts below properly evaluated the appellants’ respective defences; and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2010/eng@2026-10-02 2

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d. Whether the sentences imposed disclosed any error of principle warranting interference. Whether the Oence of Robbery with Violence Was Proved 12. Section 296(2) of the Penal Code creates the oence of robbery with violence. This Court has consistently held that the oence is established where any one of the following circumstances exists: the oender is armed with a dangerous or oensive weapon; or is in the company of one or more other persons who have, or, immediately before, during or immediately after the robbery, wounds, beats or uses other personal violence on the victim. See Oluoch vs. Republic [1985] KLR 549. 13. The evidence accepted by both courts below established that the complainants were attacked at night by several assailants acting in concert, that the assailants were armed with oensive weapons, that the complainants were assaulted and dispossessed of property. Those ndings demonstrate not merely one but all three statutory ingredients of the oence. 14. The real issue on this second appeal is not whether a robbery with violence occurred, but whether the appellants were positively identied as among the perpetrators and whether the convictions rest on legally admissible and reliable evidence. Identication and Recognition 15. Evidence of visual identication, especially where an oence is committed at night or under dicult conditions, must be approached with the greatest circumspection. In Wamunga vs. Republic [1989] KLR 424 this Court observed that mistakes in identication have led to many miscarriages of justice and that a court must carefully examine the circumstances under which the identication was made. In Roria vs. Republic [1967] EA 583 the former Court of Appeal for Eastern Africa warned that a conviction resting entirely upon visual identication should only be upheld where the court is satised that the possibility of error has been eliminated. 16. The rst appellate court appreciated these principles. It examined the intensity of the lighting, the duration of the encounter, the proximity between the witnesses and the assailants, and the opportunity each witness had to observe the attackers. Having re-evaluated the evidence, the learned Judge concluded that the witnesses had ample opportunity to identify the assailants and that their evidence was mutually corroborative. 17. No legal misdirection has been demonstrated. It is not sucient on a second appeal merely to contend that another tribunal might have reached a dierent factual conclusion. The burden lies upon an appellant to show that the concurrent ndings were unsupported by evidence or resulted from the application of incorrect legal principles. No such error has been shown. Both courts below directed themselves to the applicable principles governing visual identication before accepting the prosecution evidence. The Doctrine of Recent Possession 18. The prosecution also relied on evidence linking the 1st appellant to some of the property stolen during the robbery. The doctrine of recent possession permits a court to draw an inference that an accused found in possession of recently stolen property is either the thief or a guilty receiver, unless a reasonable explanation is oered. The principles governing the doctrine are well settled. See Malingi vs. Republic [1989] KLR 225 and Arum vs. Republic [2006] eKLR. 19. Before the doctrine may properly be invoked, the prosecution must prove that the property was positively identied as belonging to the complainant, that it was stolen during the commission of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2010/eng@2026-10-02 3

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oence, that the accused was found in actual or constructive possession of it, and that the possession was suciently recent having regard to the nature of the property. 20. The High Court carefully analyzed the evidence relating to the recovery of the stolen items and drew a clear distinction between the evidence supporting the robbery counts and that relating to the separate count of handling stolen property. That approach demonstrates that the rst appellate court independently scrutinized the evidence. We discern no basis for interfering with those ndings. Evaluation of the Defences 21. The appellants contended that their respective defences were not adequately considered. A trial court is under a legal duty to consider the defence advanced by an accused person, however weak it may appear, before arriving at a determination on guilt. 22. The record shows that both appellants denied involvement and challenged the prosecution evidence. The trial court analyzed those explanations and rejected them. The High Court revisited that evaluation and agreed with the conclusions reached, save for the conviction on rape. Whether a defence raises a reasonable doubt is ordinarily a question of fact. No legal misdirection has been demonstrated in the manner the two courts approached the issue. Whether the High Court Properly Performed Its Duty as a First Appellate Court 23. A rst appellate court is required, in accordance with the principles stated in Okeno vs. Republic [1972] EA 32, to subject the entire evidence to a fresh and exhaustive examination, weigh conicting evidence and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 24. The High Court judgment demonstrates that the learned Judge appreciated and applied those principles. The Judge separately analyzed the evidence relating to each appellant, reconsidered the testimony of the prosecution witnesses, evaluated the defences and addressed the applicable law. Signicantly, the learned Judge did not mechanically arm every nding of the trial court. Upon nding that the evidence did not support the conviction of the 2nd Appellant for rape, the High Court quashed that conviction. That intervention illustrates that the High Court independently reassessed the evidence. We are satised that the rst appellate court properly discharged its statutory duty. Sentence 25. Sentencing is ordinarily a matter of judicial discretion. An appellate court will interfere only where the sentence is unlawful, where the court acted upon a wrong principle, ignored relevant considerations, considered irrelevant matters, or where the sentence is manifestly excessive. 26. The trial court imposed the sentence then prescribed for robbery with violence and held the remaining sentences in abeyance. The High Court considered the sentences and found no legal basis for interference. Before this Court the appellants have not demonstrated that the sentences were unlawful or that either court acted upon an erroneous principle of law. We therefore nd no basis for interfering with sentence. Disposition 27. We have carefully considered the record, the rival arguments and the authorities placed before us. We are satised that the two courts below properly directed themselves on the applicable legal principles governing robbery with violence, visual identication, recent possession and the evaluation of the defence. We are equally satised that the High Court fullled its obligation as the rst appellate court by https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2010/eng@2026-10-02 4

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independently re- evaluating the entire evidence and by correcting the trial court where the conviction for rape was unsupported by the evidence. 28. No error of law has been demonstrated that would justify this Court’s intervention under Section 361 of the Criminal Procedure Code. The appeal therefore lacks merit. 29. Accordingly, we make the following orders: 30. a. The appeal against conviction is hereby dismissed. b. The convictions for robbery with violence against both appellants are armed. c. The sentences imposed and armed by the High Court are upheld. It is so ordered. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO .................................. JUDGE OF APPEAL MURUNGI B. KAIRARIA .................................. JUDGE OF APPEAL AHMED ISSACK ................................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2010/eng@2026-10-02 5

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