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Court of AppealAllowedCriminal Appeal 250 of 2006

Vincent Omondi Obeto & Another vs Republic [2010] KECA 239 (KLR)

Court of Appeal of Kenya
28 May 2010
2,984 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 robbery and stolen-property convictions because identification evidence was weak, parades were flawed, and stolen goods were never properly proven.

What this practically means

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Executive summary

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This is a second and final appeal from the High Court at Nakuru (Musinga and Kimaru, JJ.), which had dismissed the appellants' first appeals against convictions for robbery with violence contrary to section 296(2) of the Penal Code and related counts of handling and having suspected stolen property, carrying a mandatory death sentence and two-year concurrent terms. Counsel for the appellants attacked the convictions, particularly on the doctrine of recent possession; learned State Counsel conceded count 9 for lack of evidence. The Court of Appeal found the conviction on count 8 unsafe because the complainant's opportunity to identify the appellants was not established - she ran to the children's bedroom while torches were directed at her husband - and the recovered jacket had not been proved stolen, the appellant giving a plausible explanation for it. Count 9 failed because the named complainant never testified. The identification parades were flawed, the identifying witnesses having seen the appellants beforehand. Counts 10 and 11 and the alternative counts collapsed because the recovered exhibits were not identified by any complainant, discrepancies in serial numbers could have been a mix-up, and the appellants claimed the items as their own with receipts and permits. The Court also censured the trial magistrate for failing to record the language in which witnesses testified, contrary to section 77(2)(b) of the Constitution and section 198 of the CPC, and noted the practice that imprisonment terms remain in abeyance on a capital conviction. The appeals were allowed, convictions quashed, sentences set aside, and the appellants ordered set at liberty.

Questions the Court framed

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

  1. 1.Whether the convictions on count 8 were safe where the complainant's opportunity to identify the appellants was doubtful
  2. 2.Whether the doctrine of recent possession was proved to sustain the convictions on counts 8, 10 and 11 and the alternative counts
  3. 3.Whether count 9 could stand where the complainant never testified
  4. 4.Whether the identification parades were properly conducted where the identifying witness had seen the appellants before the parade
  5. 5.Whether the convictions on the alternative counts and counts 10 and 11 were supported by evidence linking the recovered items to theft

Key legal issues

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01

Safety of conviction on count 8 based on visual identification during the robbery

Holding

Conviction was unsafe because the complainant ran to the children's bedroom, the torches were directed at her husband, and she did not explain how she saw the appellant.

Reasoning

Although both courts below believed the identifying witness, this Court on a second appeal examined whether her evidence showed favourable conditions for identification. She hid in the children's bedroom, the robbers directed torchlight at the husband, and she never explained by what means she saw the appellant. The jacket underlying the related alternative count had no proven theft and the appellant gave a plausible explanation for it.

p. 3
02

Count 9 - complainant never testified

Holding

The State conceded the appeal on count 9 for lack of evidence; the complainant Margaret Wanjiru never testified.

Reasoning

The count named Margaret Wanjiru as complainant, but she never testified. The witness who did testify, PW7, was robbed of Kshs.6,000 and was not a complainant in any of the 11 charges. The count was therefore unsupported by any evidence.

p. 4
03

Identification parades conducted after the witness had seen the accused

Holding

The parades were flawed; the accused were seen by the identifying witness before the parade and the number of parade witnesses was disputed.

Reasoning

Both appellants contested the propriety of the identification parades because the identifying witness had seen them before the parade. The trial magistrate dismissed their defences as mere denials. PW12 called only one witness to the parade in respect of the 2nd appellant, while the appellant claimed four attended, two of whom he had seen at the D.C.I.O.'s office the previous day. The parade evidence was therefore unreliable.

p. 5
04

Convictions on counts 10 and 11 for having suspected stolen property

Holding

Convictions set aside; there was no evidence that the items were stolen, and the receipts and permit discrepancies could be a mix-up of numbers.

Reasoning

PW11 admitted the exhibits were not identified by any complainant. The serial number on the television differed from that on the receipt by digit transposition, which could be a mix-up. The 1st appellant claimed the television as his and the 2nd appellant claimed the iron boxes. The two courts below did not consider these issues, so the convictions could not stand.

p. 6
05

Recording of the language used by witnesses

Holding

The trial magistrate failed to record the language in which witnesses testified, contrary to section 77(2)(b) of the Constitution and section 198 of the CPC; the magistrate is to be sent a copy of the judgment.

Reasoning

Although no complaint was raised on this issue, the Court was perturbed that the trial record nowhere recorded the language used by witnesses. This contravenes section 77(2)(b) of the Constitution and section 198 of the Criminal Procedure Code. The Court directed that the trial magistrate be sent a copy of the judgment to appraise himself of these requirements.

p. 6
06

Sentencing practice on capital and non-capital counts

Holding

Where an accused is convicted of a capital offence and other offences, imprisonment sentences remain in abeyance; see Muchiri vs R.

Reasoning

The Court noted, as established practice, that where an accused is charged with a capital offence and other offences carrying prison terms, the death sentence is imposed on the capital offence while the imprisonment sentences remain in abeyance, citing Muchiri vs R. [1980] KLR 70. This rendered the concurrent two-year sentences irregular.

p. 6

Legal principles established

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  • Where a complainant's opportunity to identify an accused is not demonstrated, a concurrent finding of identification cannot sustain a conviction; the conviction becomes unsafe.
  • For a conviction on suspicion of stolen property or on recent possession, there must be evidence the property was stolen and that the accused's possession is unexplained; a claim supported by receipts or a permit is insufficient basis for conviction where the serial numbers may simply have been mixed up.
  • A count of robbery cannot stand where the named complainant never testified, even if another witness testified about a similar robbery.
  • The trial court must record the language in which witnesses testify, as required by section 77(2)(b) of the Constitution and section 198 of the Criminal Procedure Code.
  • Where an accused is charged with a capital offence and other offences carrying prison terms, sentences of imprisonment are to remain in abeyance upon a death sentence.

Court orders

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  1. 1.The appellants' appeals are allowed
  2. 2.The convictions are quashed
  3. 3.The sentences imposed upon the appellants are set aside
  4. 4.The appellants to be set at liberty forthwith unless otherwise lawfully held
  5. 5.A copy of the judgment to be sent to the trial magistrate to appraise himself of the requirements on recording the language of witnesses

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nakuru
H.C.Cr.A. No. 170 of 2002
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (as a second and final appeal from the High Court)

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.

the appellants’ appeals are allowed, the convictions quashed and the sentences imposed upon them set aside. Unless the appellants are otherwise lawfully held they should be set at liberty forthwith.
p. 6Disposition - final orders
In those circumstances we think that though the two courts below believed the witness on those points, the conviction was unsafe and he ought to have been acquitted.
p. 3Unsafe conviction on identification evidence
On counts 10 and 11 on which the appellants were convicted, there was no evidence upon which PW11 suspected that the television serial number 8111175 and two iron boxes Phillips and radio make Lasonic serial number 1027585 had been stolen.
p. 5Doctrine of recent possession not proved
Nowhere in his record did he record the language in which witnesses testified. This is contrary to the provisions of section 77(2)(b) of the Constitution and section 198 of the Criminal Procedure Code.
p. 6Recording language of witnesses
If the superior court had considered all these issues it is unlikely it would have dismissed the appellants’ appeals and/or confirmed the sentences imposed upon them.
p. 6Failure of first appellate court to consider issues

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, "Vincent Omondi Obeto & Another vs Republic [2010] KECA 239 (KLR)", Case Analysis (2010). Criminal Appeal 250 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/239/eng@2010-05-28

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