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Court of AppealDismissedCriminal Appeal No. 284 of 2008

Robert Ekai Martin v Republic [2011] KECA 152 (KLR)

Court of Appeal of Kenya
10 June 2011
2,638 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 confirmed that second appeals review legal errors only, and a night-time identification by recognition can sustain a robbery conviction.

What this practically means

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Executive summary

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This was a second and last appeal to the Court of Appeal at Nakuru by Robert Ekai Martin against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and his death sentence, following dismissal of his first appeal by the High Court (Koome and Maraga JJ) on 11th December 2008. Under section 361(1) of the Criminal Procedure Code, the court confined itself to matters of law. The appeal attacked the identification by recognition at night, the evidence that the appellant was found hiding under a bed with a metal bar seen at the robbery, the alleged failure to consider his defence and grudge allegation, and the credibility of PW2. The court held that although recognition evidence requires careful care (applying R vs. Turnbull), the torches used by the robbers produced bright light and the appellant was well known to the witnesses. It further held that the appellant's conduct - found under the bed with the metal bar, his house padlocked from outside, with relatives initially denying his presence - corroborated the recognition evidence, applying Malova vs. Republic. The appellant's defence and grudge allegation were found to have been considered and rejected by both courts below, and the conviction could rest on the independent evidence of PW2 and the appellant's conduct even disregarding the complainant's evidence. Counsel for the appellant declined to press the sentence issue as the death sentence had been commuted to life imprisonment. The court dismissed the appeal in its entirety. This judgment binds subordinate courts and the High Court on the limits of a second appeal and the treatment of recognition evidence coupled with incriminating conduct.

Questions the Court framed

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

  1. 1.Whether the identification of the appellant by recognition at night, under torchlight, was reliable and sufficient to sustain the conviction
  2. 2.Whether the evidence that the appellant was found hiding under a bed with a metal bar used in the robbery was properly relied upon
  3. 3.Whether the trial court and the first appellate court failed to consider the appellant's defence, including his allegation of a grudge with the complainant
  4. 4.Whether the evidence of PW2 was credible and ought to have been relied upon
  5. 5.Whether the death sentence was mandatory and rightly imposed

Key legal issues

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01

Scope of a second appeal under section 361(1) of the Criminal Procedure Code

Holding

Only matters of law are open on a second appeal; findings of fact accepted by the two courts below are not open to re-evaluation unless the lower courts failed to consider relevant matters, considered irrelevant ones, or were plainly wrong.

Reasoning

The court restated the established limits of section 361(1): a second appeal is confined to questions of law. It accepted that the trial court analysed the evidence and that the first appellate court revisited, analysed and re-evaluated it afresh as required. Since both courts accepted the evidence of recognition and of the appellant's conduct as credible, the Court of Appeal had no basis to disturb those concurrent findings, which were matters of fact properly considered below.

p. 4
02

Identification by recognition in difficult conditions

Holding

Recognition evidence, though more reliable than identification of a stranger, requires careful scrutiny; here it was supplemented by the appellant's conduct, which corroborated the witnesses.

Reasoning

The robbery occurred at night, but the robbers carried torches described as producing very bright light, and the appellant was well known to the complainant and PW2. Applying the Turnbull caution and the Malova line of authority on the conduct of an accused, the court found the appellant's conduct - hiding under a bed with a metal bar resembling that seen at the scene, with his house locked from outside and relatives denying his presence - corroborated the recognition evidence.

p. 4
03

Whether the appellant's defence, including the alleged grudge, was considered

Holding

Both the trial court and the first appellate court considered and rejected the appellant's defence and the alleged grudge; the ground of appeal failed.

Reasoning

The first appellate court expressly addressed the appellant's three defence witnesses, noting they did not know where he was at the time of the robbery. On the grudge allegation, the superior court found that even if a quarrel over change existed, it could not ground so serious a criminal charge. The Court of Appeal agreed that the issue was clearly considered and rejected, and that independent evidence of Peter and the appellant's conduct independently sustained the conviction.

p. 4

Legal principles established

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  • On a second and last appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal confines itself to matters of law; failures by the lower courts to consider matters they should have considered, consideration of matters they should not have considered, or plainly wrong findings of fact amount to matters of law.
  • Although identification by recognition is better than identification of a stranger, courts must exercise care before convicting on recognition evidence.

Court orders

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  1. 1.The appeal is dismissed

The bench

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

majority
majority
On appeal from
High Court of Kenya at Nakuru
H.C.C.R.A. No. 245 of 2006
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second and last appeal on matters of law only

Relief refused

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Setting aside the conviction for robbery with violence

Evidence of recognition, the appellant's conduct in hiding under a bed with a metal bar, and independent testimony of PW2 and PW3 supported the conviction

p. 4

Challenge to the death sentence

The death sentence had been commuted to life imprisonment and counsel did not wish to pursue the appeal on sentence

p. 4

Costs

No costs order 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.

The upshot of all that we have stated above is that this appeal cannot stand. It is dismissed.
p. 4Final orders - dismissal of the appeal
although identification by recognition of a suspect is better than identification of a stranger, nonetheless, even in cases of recognition it is essential to exercise care before an accused person can be convicted upon such recognition
p. 3Care required in cases of identification by recognition
Pursuant to the provisions of section 361 (1) of the Criminal Procedure Act, only matters of law would be due for consideration unless it is demonstrated that the trial court and the first appellate court failed to consider matters they should have considered
p. 3Scope of a second and last appeal on matters of law
The first appellate court likewise exercising its duty as such revisited the evidence afresh, analysed and re-evaluated the same and also accepted it.
p. 4Duty of the first appellate court to re-evaluate evidence

Issues in the judgment

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minor

The judgment refers to 'section 361 (1) of the Criminal Procedure Act', but the Kenyan statute is the Criminal Procedure Code; the reference to 'Criminal Procedure Act' appears to be an error in the judgment.

minor

The certification and signature block record delivery on 10th June 2011, while the introductory text of the record states the superior court's judgment was dated 11th December 2008; the two dates concern different judgments and are not a true contradiction, but the transcription includes extraneous certification text.

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, "Robert Ekai Martin v Republic [2011] KECA 152 (KLR)", Case Analysis (2011). Criminal Appeal No. 284 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/152/eng@2011-06-10

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