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Court of AppealPartially AllowedCriminal Appeal 11 of 2004

FRANCIS MACHARIA GICHANGI & 3 others v REPUBLIC [2007] KECA 490 (KLR)

Court of Appeal of Kenya
6 July 2007
ROR.S.C. OmoloSBS.E.O. BosireWDW.S. Deverell
2,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal quashed two robbery convictions over missing interpreter records and weak evidence, but sent two other accused back for retrial.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi by four appellants convicted of robbery with violence contrary to section 296(2) of the Penal Code, and in some cases the alternative count of handling stolen goods, arising from three robberies in Kirinyaga District on the night of 21st and 22nd April 1997. The trial was fragmented across three criminal cases, and none of the robbers was identified at the scenes; convictions rested on possession of recently stolen property and a confessed statement under inquiry. The High Court (Mbogholi and Mutitu JJ) had affirmed the convictions without closely re-evaluating the evidence, contrary to the duty of a first appellate court exemplified by Peters v. Sunday Post Ltd. Before the Court of Appeal, the State properly conceded the appeals of the 2nd and 4th appellants: the 2nd appellant's arrest and connection to the charges were unproven, and the ordinary unmarked shop goods found with the 4th appellant could not sustain the doctrine of recently stolen property. The court also considered two constitutional complaints: failure to record interpretation (section 77(2)(f)) and detention beyond 14 days (section 72(3)(b)). It held that violation of constitutional provisions is a question of fact, that an accused bears a reciprocal duty to complain of language difficulty, but that where a doubt exists about interpretation it must be resolved in the accused's favour. The court further held it improper for a magistrate to make section 210 findings on both main and alternative counts. The appeals were partially allowed: the 2nd and 4th appellants' convictions were quashed and they were set at liberty, while the 1st and 3rd appellants' convictions were set aside and a retrial ordered before a magistrate other than W.N. Njage, SRM. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the failure to record the language of the trial proceedings and to note interpretation violated the appellants' constitutional right under section 77(2)(f) of the Constitution.
  2. 2.Whether the appellants were held in police custody for longer than 14 days in breach of section 72(3)(b) of the Constitution.
  3. 3.Whether the convictions of the 2nd and 4th appellants were supported by evidence, particularly under the doctrine of possession of recently stolen property.
  4. 4.Whether the first appellate court adequately re-evaluated the evidence as required of a first appellate court.
  5. 5.Whether the trial magistrate erred in ruling that the appellants had a case to answer on both the main and alternative counts.
  6. 6.Whether, in respect of the 1st and 3rd appellants, a retrial was appropriate.

Key legal issues

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01

Right to interpretation under section 77(2)(f) of the Constitution where the trial record is silent on language

Holding

The absence of a note on interpretation raises a doubt which, in a criminal case, must be resolved in the accused's favour; the 2nd and 4th appellants' convictions were quashed on this basis, while for the 1st and 3rd appellants the trial was rendered unsatisfactory and a retrial ordered.

Reasoning

The court acknowledged its duty to enforce the Constitution but held that violation is a question of fact; there is a reciprocal duty on an accused to indicate inability to follow proceedings. Where there is no complaint at trial, the court may infer interpretation if the record shows the accused understood the charges. Here no complaint was raised at trial or on first appeal, and the cross-examinations and defences suggested understanding; nevertheless, the absence of any note left a doubt which in a criminal case must favour the accused.

p. 5
02

Misdirection in ruling on both main and alternative counts at the close of the prosecution case

Holding

It was improper for the trial magistrate to make a specific finding under section 210 of the Criminal Procedure Code on both the main and alternative counts, which are framed in the alternative; a general ruling is sufficient.

Reasoning

The charges were framed in the alternative, so a ruling presupposing them to be independent counts was a misdirection. The proper practice is a general ruling at the close of the prosecution case, with any specific finding deferred to the judgment after the defence case. This misdirection compounded the other defects in the trial and informed the court's conclusion that the trials of the 1st and 3rd appellants were unsatisfactory.

p. 2
03

Sufficiency of evidence against the 2nd and 4th appellants and the doctrine of possession of recently stolen property

Holding

The State properly conceded the appeals of the 2nd and 4th appellants: the 2nd appellant's arrest and connection to the charges were not established, and the ordinary shop goods found with the 4th appellant could not trigger the doctrine of recently stolen property.

Reasoning

For the 2nd appellant, the record did not show how or when he was arrested or by whom, and no clear evidence linked him to the main or alternative counts. For the 4th appellant, the goods found in his house were unmarked ordinary shop goods with no proof they were stolen in the three robberies, so the doctrine of possession of recently stolen goods had no factual foundation. The first appellate court's failure to analyse this evidence closely aggravated the defect.

p. 3
04

Duty of the first appellate court to re-evaluate evidence

Holding

The superior court on first appeal affirmed the trial magistrate's decision without closely analysing the evidence as a first appellate court is expected to do.

Reasoning

Citing Peters v. Sunday Post Ltd, the court reaffirmed that a first appellate court must subject the evidence to a fresh and full evaluation and draw its own conclusions. The High Court here merely affirmed the magistrate's decision without such analysis, which allowed defects such as the unsupported convictions of the 2nd and 4th appellants and the language ambiguity to go undetected until the second appeal.

p. 3

Legal principles established

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  • A trial magistrate should not make a finding under section 210 of the Criminal Procedure Code on both main and alternative counts; a general ruling suffices, with a specific finding only in the final judgment.
  • An accused bears a reciprocal duty to complain if unable to follow the language of proceedings; absent complaint, an appellate court may infer interpretation where the record shows the accused understood the charges and evidence.
  • Where some doubt exists as to whether an accused was accorded the services of an interpreter, the doubt must be resolved in the accused's favour.
  • Whether a constitutional provision has been violated is a question of fact that must be established on material placed before the court; violations may be obvious in some cases but require complaint and evidence in others.
  • The doctrine of possession of recently stolen property can only be invoked where the goods found with the accused are proved to be part of the stolen goods.

Court orders

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  1. 1.Quashed the convictions of the 2nd and 4th appellants, set aside their sentences and ordered they be set at liberty unless otherwise lawfully held.
  2. 2.Set aside the convictions and sentences of the 1st and 3rd appellants and ordered a retrial before a magistrate with competent jurisdiction other than W.N. Njage, SRM.
  3. 3.Directed that the retrial case be mentioned before the Senior Resident Magistrate's Court Kerugoya within 14 days of the order with a view to fixing a hearing date.

The bench

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

RO
majority
SB
majority
WD
majority
On appeal from
High Court of Kenya, Nairobi
H.C.CR.A. Nos. 149, 150 & 151 of 1999
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (the judgment identifies itself as 'a second appeal'); no specific constitutional or statutory appellate provision is quoted in the judgment.
Consolidated with
H.C.CR.A. Nos. 149, 150 & 151 of 1999 (consolidated first appeals; this Court dealt with consolidated second appeals of the four appellants)

Relief refused

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Acquittal of the 1st and 3rd appellants on the basis of the constitutional and evidential complaints

The evidence indicated they might have committed the offences, so the court opted for a retrial instead of an outright acquittal.

p. 5

A finding that section 72(3)(b) of the Constitution was breached by prolonged police custody

The judgment raises the issue but does not make any finding or order on it.

p. 3

Costs

No costs order is recorded 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.

In the circumstances it is our judgment that the 2nd and 4th appellants were improperly convicted. We quash their respective convictions, set aside the sentences which were meted against them and order that they be set at liberty unless otherwise lawfully held.
p. 5Final orders - quashing convictions of 2nd and 4th appellants
Accordingly we order that the convictions entered against each of them be set aside and the sentences imposed against them in those charges be set aside. Both the appellants to be presented before a magistrate with competent jurisdiction other than W.N. Njage, SRM, for retrial.
p. 5Final orders - retrial of 1st and 3rd appellants
The case be mentioned before the Senior Resident Magistrate’s Court Kerugoya within 14 days of this order with a view to fixing the hearing date.
p. 5Final orders - timeline for retrial mention
Where as here some doubt exists as to whether or not the appellants were accorded the services of an interpreter, the doubt must be resolved in their favour.
p. 5Right to interpretation
In a case such as this one it is undesirable to make a finding under section 210 of the Criminal Procedure Code on both the main and alternative counts. A general ruling is sufficient.
p. 2Section 210 rulings on alternative counts
In his case, therefore, there was no basis for invoking the doctrine of possession of recently stolen goods. The items found with him were ordinary shop goods without any special mark.
p. 3Doctrine of possession of recently stolen property
The superior court on first appeal affirmed the trial magistrate’s decision, without closely analyzing the evidence as it was expected to do as a first appellate court (Peters v. Sunday Post Ltd [1958] EA 424).
p. 3Duty of first appellate court

Issues in the judgment

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material

The 2nd appellant is identified inconsistently in the judgment: the coram names 'John Muthike Wangaru (2nd appellant)', but the narrative of arrests refers to 'Kasuki also arrested Joseph Kinyua (2nd appellant) from Ngurubani', while elsewhere 'Joseph Kinyua Muriungi, was the 2nd accused' and is described as the 3rd appellant.

minor

The 1st appellant's arrest date is given inconsistently: his defence states he was arrested on 12th May 1997, while the background states he was arrested on 25th May 1998.

minor

The 4th appellant is spelled both 'Joram Kinyua Ndungu' in the coram and 'Jorum Kinyua' in the narrative of arrests.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "FRANCIS MACHARIA GICHANGI & 3 others v REPUBLIC [2007] KECA 490 (KLR)", Case Analysis (2007). Criminal Appeal 11 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/490/eng@2007-07-06

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