Joseph Maina Kimemia & another v Republic [2004] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed robbery-with-violence convictions, holding that an ordinary kitchen knife counts as a dangerous weapon if wielded to threaten injury during a 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 particulars of the charges of robbery with violence under section 296(2) of the Penal Code were proved as required by law, including whether the knives and the toy pistol were dangerous or offensive weapons.
- 2.Whether defects in the framing of the charges, whose particulars were overloaded, vitiated the convictions or were curable under section 382 of the Criminal Procedure Code.
- 3.Whether the convictions could properly rest on the identification of the appellants by the prosecution witnesses, including the identification of the appellants at Kambiti after the robbery.
- 4.What evidential value attached to the appellants' statements under inquiry, alleged to have been retracted on the ground that they were procured by torture.
- 5.Whether the superior court, as the first appellate court, failed to reconsider the evidence, evaluate it and make its own conclusions.
Key legal issues
#The ingredients of robbery with violence under section 296(2) of the Penal Code
The offence is established once the prosecution proves any one of three elements: the offender was armed with a dangerous or offensive weapon or instrument; was in company with one or more other persons; or at or immediately before or immediately after the robbery wounded, beat, struck or used other personal violence to any person.
The court adopted the three circumstances set out in Oluoch v Republic, noting they are lifted directly from the words of section 296(2). Because proof of any single element suffices, the charges here succeeded on the pleaded facts: the hijack was carried out by three people acting in company, which alone constituted capital robbery, quite apart from the weapons carried by the offenders.
The meaning of 'dangerous or offensive weapon' in section 296(2), and the status of a knife and a toy pistol
The phrase bears the same meaning as in section 89(4) of the Penal Code and as construed in Mwaura v Republic: any article made or adapted for causing injury, or intended by the possessor for such use. A knife wielded during a robbery with intent to injure qualifies even though not made or adapted for that purpose; a toy pistol would qualify only if gazetted as a firearm under the Firearms Act.
The phrase is undefined in section 296 and in the interpretation section. The court adopted the construction in section 89(4) and in Mwaura, which the High Court had followed in Muthiori. The knives, though ordinary articles, were intended by the robbers to cause injury to the passengers and so were dangerous and offensive weapons. On the toy pistol, the Firearms Act definition in section 2 centres on capability of discharging a shot and causing injury; a toy gun would qualify only if specified by ministerial gazette order under paragraph (d), which the court could not confirm, the State Counsel having offered no assistance on the point.
The effect of overloaded and imperfectly framed charge particulars
Although the particulars did not state that the knives and toy pistol were dangerous or offensive weapons, the charges disclosed offences of capital robbery because they alleged commission by more than one person and, alternatively, that the offenders were armed with knives; the defect caused no failure of justice and was curable under section 382 of the Criminal Procedure Code.
The particulars alleged the offenders acted 'jointly with others not before the court' while armed with knives and a toy pistol, without pleading those as dangerous or offensive weapons. The court held the charges nonetheless disclosed capital robbery on the 'in company' element and the knives. It weighed that defence counsel raised no objection to the charges throughout the trial and concluded no failure of justice had been occasioned.
The scope of a second appeal and the treatment of concurrent findings of fact
A second appeal is confined to points of law; concurrent findings of fact by the two courts below cannot be upset unless based on misdirections such that it is reasonably probable the appellants would not have been convicted without them.
Citing Kiringo v Republic, the court held the concurrent findings that the appellants were not passengers, were sufficiently identified as the robbers, were not trapped or hijacked to Kambiti, and each made a detailed statement under inquiry admitting the offence could not be disturbed. Both appellants had conceded in evidence that the passengers were robbed, and their accounts of how the robbery was committed did not differ from the witnesses' accounts, reinforcing the identification findings.
The sufficiency of the identification of the appellants
The concurrent findings that the appellants were sufficiently identified could not be faulted: each was identified by witnesses who sat close to him for the whole journey from Nairobi in broad daylight.
Three witnesses - the driver Joseph Weru, the conductor Joseph Irungu and the passenger Mercy Njeri - identified the appellants. Peter Kamau Ndungu sat in the front cabin close to the driver; John Maina Kimemia sat next to Mercy Njeri and Joseph Irungu throughout. All three witnesses were alert, the identification occurred in broad daylight, and both appellants admitted in evidence that the passengers were in fact robbed, their accounts of the robbery matching those of the witnesses.
The evidential value and alleged retraction of the statements under inquiry
The statements under inquiry were properly admitted: they were produced without objection, the recording officers testified they were voluntary, and a bare assertion of torture was not a sufficient repudiation or retraction; an accused must object at trial to permit inquiry into the circumstances of recording.
Both statements were admitted without objection - indeed defence counsel specifically told the trial magistrate he had no objection to their production. The first appellant never alleged involuntariness in his evidence. The second appellant's single sentence alleging torture was insufficient; he should have objected at trial so the magistrate could inquire into the circumstances. The superior court analysed the statements and found them truthful and corroborated by the prosecution evidence.
Whether the superior court discharged its duty as a first appellate court
The complaint was unsupported: the judgment of the superior court shows it reconsidered the identification evidence, considered the deficiency in the evidence, analysed the statements under inquiry, found them truthful, and came to its own conclusions.
The court tested the complaint against the actual judgment of the High Court, which expressly evaluated the identification evidence, acknowledged that no villager testified as to how the appellants were caught and beaten, filled that gap with the appellants' own detailed statements produced without objection, found the confessions corroborated by the prosecution witnesses, and reached its own conclusions. The trial magistrate had likewise evaluated the defence as an afterthought in light of the admissions in the statements under inquiry.
Legal principles established
#- On a second appeal the Court of Appeal is confined to points of law and will not upset concurrent findings of fact unless satisfied they were based on misdirections such that it is reasonably probable the appellants could not have been convicted without them.
- An offence of robbery with violence under section 296(2) of the Penal Code is proved once the prosecution establishes any one of the three statutory elements.
- An article that is not made or adapted for causing injury, such as an ordinary knife, is nonetheless a dangerous or offensive weapon for purposes of section 296(2) if the robber wields it intending to cause injury.
- A conviction on charges with imperfectly framed or overloaded particulars will stand where the charges nonetheless disclose the offence, no objection was taken at trial and no failure of justice is occasioned, the defect being curable under section 382 of the Criminal Procedure Code.
- A bare allegation of torture is not a sufficient repudiation or retraction of a statement under inquiry; an accused who wishes to challenge such a statement must object to its admission at trial so the magistrate can inquire into the circumstances in which it was recorded.
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 of Kenya at Nyeri
- H.C.CR.A. Nos. 435 & 436 of 2000
- Jurisdiction invoked
- Not expressly cited in the judgment. The matter reached the Court of Appeal as a second criminal appeal from the High Court, and the judgment records the governing limitation: 'A second appeal is confined to points of law'.
- Consolidated with
- Criminal Appeal No. 105 of 2003, Criminal Appeal No. 110 of 2003
Relief refused
#Allowance of the appeal and quashing of the convictions on the five counts of robbery with violence
The court was satisfied the appellants were properly convicted: the statutory elements were made out, identification in broad daylight by three witnesses was sound, and the concurrent findings of fact could not be disturbed on a second appeal.
Exclusion of the two statements under inquiry as retracted confessions procured by torture
The statements were admitted at trial without objection, counsel expressly told the magistrate he had no objection, the recording officers testified they were voluntary, and a bare allegation of torture was not a sufficient repudiation.
A determination that the toy pistol could not sustain the capital charge
The court could not confirm whether a toy gun had been gazetted as a firearm under the Firearms Act, but the conviction was sustainable regardless because the offences were committed by more than one person and the offenders were armed with knives.
Costs
No order as to costs was made; the judgment ends with the dismissal of the appeal and contains no costs order.
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 these reasons, we are satisfied that the appellants were properly convicted and accordingly, we dismiss this appeal.
It is clear from the wording of Section 296 (2) of the Penal Code that the offence is proved if prosecution proves any of the three elements which constitute the charge of capital robbery.
In our view the words "dangerous or offensive weapon" in Section 296 (2) of the Penal Code bear the same meaning as Section 89 (4) of the Penal Code and as construed in the case of Mwaura & Others v. Republic (supra) for the purposes of Section 308 (1) of the Penal Code.
There cannot be any doubt that although a knife is not made or adapted for use for causing injury to a person, it would nevertheless be a dangerous or offensive weapon for purposes of Section 296 (2) of the Penal Code if the robbers in wielding it in the cause of robbery intend to use it for causing injury to any person.
If a toy gun is gazetted as a firearm, under the Firearms Act, then in our opinion, it would be considered as a dangerous or offensive weapon for purposes of section 296 (2) of the Penal Code.
A second appeal is confined to points of law and this Court cannot upset those findings of fact unless satisfied that the findings were based on misdirections of such a nature that it is reasonably probable that without them, the appellants could not have been convicted.
That bare statement is not a sufficient repudiation or retraction of the statement.
We are not satisfied that the defect in the charges has occasioned a failure of justice and, in our view, any defects in the charges is curable under section 382 of the Criminal Procedure Code.
Issues in the judgment
#Internal date inconsistency: the judgment records that the robbery occurred on 19th September, 1999 and that both appellants made their statements under inquiry on 30th December, 1999, yet the second appellant's quoted testimony alleges torture on 30.8.99 (30th August, 1999) to sign a statement - a date that precedes both the offence and the recording of the statements. The date as reported cannot be reconciled with the rest of the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Maina Kimemia & another v Republic [2004] KECA 137 (KLR)", Case Analysis (2004). Criminal Appeal Nos. 105 & 110 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/137/eng@2004-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.