Boniface Liako Musima & 2 others v Republic [2010] KECA 349 (KLR)
The bottom line
#Kenya's Court of Appeal upheld three robbery convictions based on strong identification evidence and recently stolen property, but replaced a death sentence passed on an appellant who said he was 17.
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 evidence of identification was weak and whether the appellants were correctly identified as part of the gang that robbed Guy Robin
- 2.Whether the evidence on record supports the application of the doctrine of possession of recently stolen property
- 3.Whether the superior court erred in failing to properly analyse and re-evaluate the evidence before the trial court
- 4.Whether the 1st appellant's death sentence was illegal given his stated age of 17 years at sentence
Key legal issues
#Sufficiency and reliability of evidence of visual identification at night
Identification was reliable: bright electric lights, proximity of attackers, prolonged contact, prior familiarity with the 2nd appellant, and properly conducted identification parades supported the convictions.
All three witnesses testified that bright electric lights were on during the over-hour-long attack, enabling observation of the attackers whose faces were uncovered. The 2nd appellant was previously known to the victims as a gardener. Both courts below accepted the identification parades as properly conducted and believed the identifying witnesses; this Court on second appeal found no basis to interfere with those concurrent findings of fact.
Doctrine of possession of recently stolen property
The doctrine applied: each appellant was found with stolen items less than a week after the robbery, requiring a plausible explanation which none gave.
Stolen property, including a Mercedes Benz car, electronics and foreign currency, was recovered from the appellants within about four days of the robbery and positively identified by the complainants. Possession raised a rebuttable presumption that they were the thieves; the 1st and 3rd appellants gave no plausible explanation, and the 2nd appellant's explanation for his presence at the Kakamega homestead was found unbelievable.
Duty of an accused under section 111 of the Evidence Act to explain facts especially within his knowledge
The 2nd appellant had an evidential duty to explain why he was found at the homestead where the stolen car was recovered; his explanation was unbelievable.
The 2nd appellant was arrested at a homestead whose owner did not know him, while driving the stolen vehicle. The reason for his presence was a matter especially within his own knowledge. Section 111 of the Evidence Act imposed an evidential burden on him to explain, and his account of attending a funeral and being forced to sleep there did not withstand scrutiny against the prosecution evidence.
Legality of a death sentence on an appellant who stated he was 17 years old at sentencing
The 1st appellant told the trial court he was 17; the magistrate did not inquire into his actual age before imposing the death sentence, rendering the sentence problematic.
The 1st appellant stated in mitigation that he was 17 years old. The magistrate made no inquiry into his actual age and there was no evidence of a different age on record. Although the issue was not raised before the superior court, this Court set aside the 1st appellant's death sentence and substituted detention at the President's pleasure.
Whether the superior court adequately re-evaluated the evidence on first appeal
The complaint had no basis; the superior court meticulously analysed and considered the evidence against each appellant.
The superior court had undertaken its own independent evaluation of the entire evidence, as its quoted judgment showed, and affirmed the trial magistrate's conclusion that the prosecution had proved its case beyond reasonable doubt. This Court, having also reviewed the evidence, reached the same conclusion, so the ground of failure to re-evaluate failed.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law only
- An appellate court will not disturb a trial court's finding of fact where the evidence reasonably supports it, especially on credibility of witnesses
- Possession of recently stolen property raises a rebuttable presumption of fact that the possessor was the thief, rebuttable only by a plausible explanation
- An accused's cautionary statement is evidence of the weakest kind against a co-accused but may lend support to other evidence against that co-accused
Court orders
#- 1.Appeals by the 1st and 3rd appellants are dismissed
- 2.The 2nd appellant's appeal against conviction is dismissed
- 3.The sentence of death passed against the 2nd appellant is set aside and in lieu thereof he shall be detained at the President's pleasure
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 130 of 1999
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code - second appeal confined to matters of law only
Relief refused
#1st and 3rd appellants' appeals against conviction and sentence
Identification evidence and possession of recently stolen property established guilt; conviction for robbery with violence was properly proved
2nd appellant's appeal against conviction
Betty identified him during the robbery, he was picked in an identification parade, and his explanation for being found in Kakamega was unbelievable
Costs
No costs order made in the judgment
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.
Section 361(1) of the Criminal Procedure Code provides that this Court’s jurisdiction is confined to matters of law only.
It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses.
The possession raises a rebuttable presumption of fact that they were the thieves.
The 1st and 3rd appellants were found with the respective items less than a week after they had been reported stolen. That was a short enough period for the doctrine to be invoked.
We, of course appreciate that it is evidence of the weakest kind against a co-accused. However, it is not the only evidence against the co-accused. It lends support to the evidence against them.
The 2nd appellant’s appeal against conviction is also dismissed but on sentence the sentence of death passed against him is hereby set aside, and in lieu thereof we order that he shall be detained at the President’s pleasure.
Issues in the judgment
#The judgment states the appellants were asked to offer mitigation and that the 1st appellant who was 'the third accused' said 'I am 17 years old', but later the discussion of the age issue refers to 'the actual age of the 2nd appellant' - an apparent internal inconsistency in the reference to the accused whose age was not inquired into
The transcript contains a duplicated closing line 'Order accordingly.'
The 3rd appellant's name appears variously as 'Samuel Murunga' (coram), 'Samuel Murunga Mururi' and 'Samuel Murunga Muruli' within the judgment
Peters v. Sunday Post Ltd is cited with the year [1858] EA 424, which is internally implausible for a judgment by Sir Kenneth O'Connor P and appears to be a typographical error in the report
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Afyare Enterprises Company Limited v Gideon Kiremah Mugambi & 3 others [2019] KECA 301 (KLR)[2019] KECA 301 (KLR)11 Oct 2019
- Patrizia Bini v Melina Investments Limited & 3 others [2015] KECA 462 (KLR)[2015] KECA 462 (KLR)31 Jul 2015
- Muumbi v Republic (Criminal Appeal 5 of 2013) [2015] KECA 584 (KLR)[2015] KECA 584 (KLR)3 Jul 2015distinguished
Cite this brief
#Cite this brief
Caselaw, "Boniface Liako Musima & 2 others v Republic [2010] KECA 349 (KLR)", Case Analysis (2010). Criminal Appeal No. 283 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/349/eng@2010-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.