Stephen Kaleng Makalale & Another v Republic [2010] KECA 258 (KLR)
The bottom line
#Kenya's Court of Appeal upheld robbery convictions of two former police officers, ruling missing witnesses, weak identification complaints, and judgment delays didn't undermine the case.
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 failure to call the arresting officer and other essential witnesses prejudiced the appellants' case
- 2.Whether the superior court failed to analyse and re-evaluate the evidence on first appeal as it was required to do
- 3.Whether the appellants were properly identified as the persons who committed the robbery
- 4.What is the effect, if any, of the unexplained 2½-year delay in delivery of the first appellate judgment
Key legal issues
#Failure to call the arresting officer and other witnesses
The omission was not prejudicial; the totality of the evidence from the Wells Fargo crew and Lucy left no doubt the appellants committed the robbery, and the arresting officers' evidence would have been of the weakest kind as they themselves stole part of the recovered money
Applying Bukenya v. Uganda, the court held the Director has discretion over material witnesses, subject to a duty to call necessary witnesses and a duty on the court to call essential witnesses. Here the car crew and Lucy, believed by both courts below, connected the appellants to the offence. The arresting officers had themselves stolen recovered money, so their evidence would have been weak. The evidence was not barely adequate.
Whether the superior court failed to analyse and re-evaluate the evidence
The superior court did reasonably evaluate and analyse the evidence; the incomplete evidence of the investigating officer and the status of the Wells Fargo officers as initially suspected did not weaken the case
The court held that the Wells Fargo officers, even if treated as accomplices, were believed and their evidence was corroborated by Lucy's testimony. Under section 141 of the Evidence Act an accomplice is a competent witness, though corroboration is needed. The incomplete evidence of the investigating officer caused no appreciable prejudice to the appellants.
Identification of the appellants at the road block
The complaint was a red herring; Lucy properly identified the appellants as the two uniformed officers carrying firearms and yellow polythene bags, and the sequence of events left no doubt
Lucy testified to giving a lift to two armed uniformed officers carrying two yellow polythene bags, and to the recovery of money at the road block. She had had no prior contact with the Wells Fargo staff, so her evidence was independent. Although she did not specifically identify them, the sequence of events left no doubt as to identity.
Effect of the 2½-year delay in delivering the first appellate judgment
The delay was unjustifiable and deprecated, but the only prejudice was anxiety as to outcome, which does not warrant appellate interference
The court set out the established principles on which an appellate court interferes with a decision and held that anxiety as to the outcome of the appeal is not the sort of prejudice that constrains interference, since the delay had not affected the outcome or the court's appreciation of the evidence and submissions.
Legal principles established
#- An appellate court interferes with a decision on established principles, including where relevant matters were not considered, irrelevant matters considered, the decision is based on no evidence, no reasonable tribunal would have reached it, or the delay has affected the outcome
- Accomplice evidence is admissible and may found a conviction if corroborated by independent evidence implicating the accused
- The Bukenya test governs whether failure to call a witness is prejudicial: the prosecution has a duty to call all necessary witnesses, but evidence is not barely adequate merely because some witnesses were not called
Court orders
#- 1.The appellants' appeal dismissed
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A. No.310-311 of 2001
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (as a second appeal from first appeal dismissed by the High Court)
- Consolidated with
- Criminal Appeal 165 of 2008
Relief refused
#Setting aside of convictions on the ground of failure to call the arresting officer
The evidence of arrest would only have made a strong case more plain; the arresting officers' evidence would have been of the weakest kind as they stole part of the recovered money
Reversal on the ground of alleged failure by the superior court to re-evaluate evidence
The superior court did reasonably evaluate and analyse the evidence; the incomplete evidence of the investigating officer caused no appreciable prejudice
Reversal on the ground of delayed judgment
The prejudice suffered was only anxiety as to outcome, which does not justify appellate interference
Costs
No costs order made; the judgment contains no order as to costs.
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.
We dismiss the appellants’ appeal. It is so ordered.
In an appropriate case such delay can deprive a judgment of its integrity. We deprecate the delay.
An appellate court interferes with a decision on established principles. Firstly, when the decision failed to take into account relevant matter.
The totality of the evidence given by the Wells Fargo crew and Lucy leaves no doubt that a robbery took place and the appellants were connected with it.
Issues in the judgment
#The 2nd appellant's name appears as 'Sabiano Mbondo Okanga' in the cause title but as 'Sabiano Mbondo' in the body of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kaleng Makalale & Another v Republic [2010] KECA 258 (KLR)", Case Analysis (2010). Criminal Appeal 163 & 165 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/258/eng@2010-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.