Joseph Onyango Owuor & Cliff Ochieng Oduor v Republic (Criminal Appeal 353 of 2008) [2010] KECA 313 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that robbery-with-violence charges are valid as drafted, and that delays beyond 14 days in bringing accused persons to court can be excused.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a charge under section 296(2) of the Penal Code discloses an offence when read without express reference to section 295 (the definition of robbery)
- 2.Whether the statement and particulars of the offence under section 296(2) were fatally defective for duplicity or for failing to disclose the specific offence or aggravation
- 3.Whether the appellants' constitutional rights under section 77(8) of the former Constitution were violated by being charged under a section said not to define any offence
- 4.Whether the two-day delay in presenting the 2nd appellant to court beyond the 14 days stipulated under section 72(3) of the former Constitution rendered the proceedings a nullity
- 5.Whether the identification of the appellants was safe, being a question of fact on second appeal
Key legal issues
#Whether a charge under section 296(2) of the Penal Code discloses an offence without express reference to section 295
It does. The marginal note common to sections 296(1) and 296(2) ('punishment of robbery') is read with the sections, and section 296(2) refers to the aggravated circumstances of the robbery defined in section 295.
In Kenya marginal notes are generally read together with the section. By ejusdem generis, sections 296(1) and 296(2) are read together. Section 295 merely defines robbery, as section 268 defines stealing while later sections prescribe degrees of punishment. The Second Schedule of the Criminal Procedure Code provides one standard form for both section 296(1) and 296(2), confirming that a charge under section 296(2) is not defective.
Whether the particulars of the robbery counts were duplex or violated section 77(8) of the former Constitution
No. The particulars disclose different ways of committing the single offence of robbery with violence under section 296(2), and the offence and penalty are both defined in written law.
Since the statement of offence under section 296(2) properly discloses the aggravated offence, the appellants could not have been prejudiced in formulating their defence. The alternative ways of committing the offence set out in the particulars (armed with a weapon, in company with others, or using personal violence) are alternative modes of the same offence, not multiple offences, so the charge is not duplicitous.
Whether the two-day delay beyond the 14 days in section 72(3) of the former Constitution vitiated the trial
No. The period is not absolute; the court has a judicial discretion to excuse delay on the facts of each case, and the record showed the appellants were shuttling between courts handling other robbery cases.
The delay of two days was not clearly established, was not raised before the trial court or the first appellate court, and the appellants were in prison custody facing other robbery matters in different courts, which could explain the delay. Deciding whether delay is excusable is an exercise of judicial discretion for the benefit of the accused; even a longer delay may be justified. The accused must raise the issue early so the prosecution can explain it.
Whether identification of the appellants was safe
Yes. Both appellants were picked out at identification parades, the 1st appellant having distinct features; the trial and first appellate courts made concurrent findings of fact that the identification circumstances were favourable.
On a second appeal the Court of Appeal is concerned with matters of law only; where the two courts below made concurrent findings of fact after considering the circumstances of identification, the second appellate court has no basis for interference. The distinct features of the 1st appellant and the parade identifications of both appellants supported those findings.
Sentencing practice where death and imprisonment sentences are imposed in the same trial
A person sentenced to death ought not additionally to be ordered to serve a term of imprisonment in the same trial; the trial magistrate erred in not holding the 5-year imprisonment term in abeyance.
Once the death penalty is carried out the convict cannot serve the imprisonment term, and requiring the imprisonment term first would be cruel and inhuman. The superior court below correctly ordered subsequent death sentences to be held in abeyance since a person cannot be hanged more than once.
Legal principles established
#- Section 296(2) of the Penal Code, read with its common marginal note with section 296(1) and with section 295, properly discloses the offence of robbery with violence; a charge under it is not fatally defective for failing to plead the definition in section 295, and particulars disclosing different ways of committing the offence are not duplicitous.
- The 14-day period under section 72(3) of the former Constitution for presentation of a capital offender to court is not absolute; a court retains judicial discretion to excuse unexplained delay in the circumstances of each case.
- An accused person has a duty to raise the issue of delay in presentation to court at the earliest possible opportunity.
- On a second appeal, the Court of Appeal will not interfere with concurrent findings of fact by the two courts below on identification absent any basis for interference.
- A person sentenced to death should not, in the same trial, be additionally ordered to serve a term of imprisonment; the correct practice is for subsequent death sentences to be held in abeyance since a person cannot be hanged more than once.
Court orders
#- 1.The appeals of both appellants were dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C.CR.A. No. 142 of 2006
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (first appellate judgment of the High Court on appeal from the Senior Resident Magistrate's court)
Relief refused
#Quashing of the convictions and sentences on the ground that the charges under section 296(2) were fatally defective
Section 296(2) read with the common marginal note and section 295 properly discloses the offence of robbery with violence
Finding that the two-day delay in presenting the 2nd appellant to court violated section 72(3) of the Constitution
The delay was not shown to be inordinate or unjustifiable; the appellants were shuttling between courts and the accused bore a duty to raise the issue at the earliest opportunity
Costs
The judgment makes no express 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.
In the result, we are satisfied that the appellants’ respective appeals are without merit. Accordingly we dismiss the appeals. It is so ordered.
In this country marginal notes are as a general rule, read together with the section.
The 14 days duration is not absolute. The delay could be even for a month, provided that the delay may be justified in one way or another.
an accused person cannot be said not to have a duty to raise the issue of delay. In our view he has a duty to raise the matter at the earliest possible opportunity so as to enable the prosecution to obtain an explanation on the delay.
Those were concurrent findings of fact and we have no basis for interfering.
It will be cruel and inhuman if such a person is ordered to complete the imprisonment term before the sentence of death is carried out.
Issues in the judgment
#The judgment refers to the appellants' presentation to court occurring 'about 16 days after arrest' and describes a 'three days delay' in counsel's submission, while elsewhere describing a 'two days delay' relative to the 14-day limit; the arithmetic is internally inconsistent.
The judgment contains no express order on costs, leaving the costs position silent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karemana v Republic (Criminal Appeal 33 of 2020) [2025] KECA 224 (KLR)[2025] KECA 224 (KLR)7 Feb 2025
- Paul Katana Njuguna v Republic [2016] KECA 207 (KLR)[2016] KECA 207 (KLR)14 Oct 2016followed
- Alex Kimathi v Republic [2014] KECA 738 (KLR)[2014] KECA 738 (KLR)14 Feb 2014followed
- Mwaura & 2 others v Republic (Criminal Appeal 5 of 2008) [2013] KECA 541 (KLR)[2013] KECA 541 (KLR)18 Oct 2013followed
Cite this brief
#Cite this brief
Caselaw, "Joseph Onyango Owuor & Cliff Ochieng Oduor v Republic (Criminal Appeal 353 of 2008) [2010] KECA 313 (KLR)", Case Analysis (2010). Criminal Appeal 353 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/313/eng@2010-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.