M’Riungi & 3 others v Republic (Criminal Appeal 134, 135, 136 & 137 of 1982) [1983] KECA 34 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed four death sentences for robbery with violence, ruling that one accused's confession can be used against their co-accused.
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 first three appellants were properly recognised by Gitonga as participants in the robbery
- 2.Whether the credibility of Ester Nyoroka and Gitonga was properly accepted by the two lower courts
- 3.Whether the repudiated confessions of Stephen M'Riungi and Robert Mugambi could be taken into account against co-accused under section 32(1) of the Evidence Act
- 4.Whether Mrs Mugambi's evidence was properly relied upon without treating her as an accomplice
- 5.Whether the corroboration of Mugambi's repudiated confession by his wife's testimony and possession of recently stolen goods was sufficient
- 6.Whether a senior resident magistrate had jurisdiction to try a capital offence and impose a sentence of death, section 6 of the Criminal Law (Amendment) Act (No 3 of 1969) being alleged ultra vires the Constitution
Key legal issues
#Second appeals and findings of fact
Whether the appellants were recognised rather than merely identified was a question of fact on which the two lower courts made concurrent findings; the Court of Appeal will not interfere.
Gitonga knew the first three appellants and had ample opportunity, with favourable lighting, to recognise them at the scene. The trial magistrate saw and heard the witnesses and the first appellate court upheld those findings. On a second appeal limited to law, the court declined to treat questions of recognition and credibility as issues of law, adopting Martin v Glyneed Distributors Ltd.
Use of a co-accused's repudiated confession
Repudiated confessions admitted after a trial within a trial and corroborated could properly be taken into account against both their makers and co-accused under section 32(1) of the Evidence Act.
Stephen's confession was amply corroborated by Gitonga's recognition of him at the scene and by Mugambi's confession. The confessions of Stephen and Mugambi each implicated Geoffrey and were admitted after a trial within a trial. Section 32(1) of the Evidence Act (cap 80) permits a confession to be taken into account against a co-accused.
Nature of sufficient corroboration
Corroboration of a repudiated confession or accomplice-type evidence need only be independent testimony, which may be circumstantial, connecting the accused with the crime.
Following R v Baskerville as applied in R v Beck, the court held that Mugambi's wife's testimony and the recovery in his house of a substantial proportion of the stolen goods within a day of the robbery was independent evidence confirming both the commission of the offence and his part in it.
Jurisdiction of a senior resident magistrate to try a capital offence and impose death
Section 6 of the Criminal Law (Amendment) Act (No 3 of 1969) empowering senior resident and resident magistrates to try robbery under section 296 and pass any lawful sentence was not ultra vires the Constitution.
Section 65(1) of the Constitution permits Parliament to establish subordinate courts with such jurisdiction as may be conferred by law, and section 60(1) does not conflict with this. Unlike the Jamaican Gun Court in Minds v The Queen, Parliament did not create a new court or transfer judicial power to the executive. The death penalty itself is saved by section 74(2) of the Constitution.
Recognition versus identification
The case was one of recognition, not identification of strangers, and the circumstances for positive recognition were favourable.
Gitonga knew the first three appellants before the robbery; the scene was lit by a hurricane lamp and torches; Stephen sat on Gitonga's chest and stomach and cut him. Possession of recently stolen goods and identified items found in the appellants' houses supplied independent confirmatory evidence.
Legal principles established
#- On a second appeal confined to matters of law, an appellate court is bound by concurrent findings of fact of the lower courts unless no reasonable tribunal could have reached them.
- Under section 32(1) of the Evidence Act (cap 80), a confession by an accused is admissible against a co-accused.
- Corroboration need only be independent circumstantial evidence connecting the accused with the crime.
- Parliament may, under section 65(1) of the Constitution, confer on subordinate courts by ordinary law jurisdiction to try robbery with violence and to pass sentence of death, without offending the constitutional provisions on the High Court.
- The death penalty for robbery with violence is saved by section 74(2) of the Constitution as a punishment lawful in Kenya on December 11, 1963.
Court orders
#- 1.All four appeals dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not specified in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal on questions of law under the Criminal Procedure Code (provision not expressly cited in the judgment)
Relief refused
#All grounds of appeal of the four appellants against conviction and sentence
Concurrent findings of fact by the two lower courts were not disturbed; confessions were properly admitted and applicable against co-accused; the subordinate court had jurisdiction under the Constitution
Costs
No costs order stated 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.
For the reasons stated we dismiss all the four appeals.
There is no limitation in the Constitution whereby a subordinate court may not try the offence of armed robbery or pass a sentence of death upon a conviction for an offence carrying that penalty.
a law is not unconstitutional if it authorises the inflicting of a description of punishment which was lawful in Kenya on December 11, 1963
corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime
where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law
This was not a case of identification but recognition because Gitonga, who was in the shop when it was broken into, knew the first three appellants
Issues in the judgment
#The judgment names the second appellant variously as 'Geoffrey Mbaabu', 'Mbaabu' and 'Muriungi Mbaabu' in the narrative of witness evidence, creating possible identity confusion between the second appellant and 'Muriungi M'Muthamia' named by Geoffrey Kijea.
Witness names are inconsistently rendered: 'Erastus Kiirigia (PW 3)' and later 'Festus Edward Githinji' / 'Festus Muriithi (PW 6)' while the list of persons at the police station refers to 'Restus Muriithi (PW 6)'.
Rael Kirote Mugambi (PW 5) is also referred to as 'Real Kirote wife of Mugambi'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Riungi & 3 others v Republic (Criminal Appeal 134, 135, 136 & 137 of 1982) [1983] KECA 34 (KLR)", Case Analysis (1983). Second Appeals from conviction for robbery with violence (High Court, Meru - not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/34/eng@1983-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.