P M, L M & P N v Republic (Criminal Appeal 60 of 2014) [2014] KECA 188 (KLR)
The bottom line
#Kenya's Court of Appeal upheld robbery-with-violence convictions, confirming the offence exists under Kenyan law and that second appeals can only challenge errors of law, not facts.
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 High Court abdicated its duty to re-evaluate and re-assess the evidence and draw its own conclusions
- 2.Whether the High Court failed to determine whether the ingredients of the charges were proved
- 3.Whether the trial court failed to consider the defence testimony and to exclude the reasonable possibility of the defence being true
- 4.Whether each of the appellants was positively identified as one of the persons who attacked and robbed the complainant
- 5.Whether the offence of robbery with violence exists in the laws of Kenya
- 6.Whether PW4 and PW5, being minors, required a voire dire examination
- 7.Whether the failure to call the investigating officer and other crucial witnesses was fatal to the prosecution case
- 8.Whether the prosecution proved that Ksh. 470,000/= was stolen
Key legal issues
#Second appeal confined to matters of law
The Court declined to interfere with concurrent findings of fact by the trial court and the High Court, being confined to points of law under Section 361 of the Criminal Procedure Code.
Re-evaluation of evidence is a matter of law, but this being a second appeal, the Court's mandate is limited. It would only disturb concurrent findings of fact if they were based on no evidence, a misapprehension of evidence, or wrong principles. The appellants' complaints on identification and contradictions were matters of fact already determined by the two courts below.
Identification and recognition at night
Despite the offence occurring at 8.00 pm, the appellants were positively recognized by PW1, PW2, PW4, PW5 and PW6 through visual and voice recognition, placing each at the scene.
Recognition of family members is more reliable than identification of strangers. The Court weighed the lighting from hurricane and chimney lamps and a torch, the unshaken testimony of the witnesses, the independent witness PW6, and the fact that the evidence displaced the 2nd appellant's alibi. Family acrimony and land dispute were considered but did not create reasonable doubt.
Existence of the offence of robbery with violence
The offence of robbery with violence exists in Kenyan law; Section 296(2) of the Penal Code creates an offence with three ingredients, proof of any one of which suffices for conviction.
Rejecting the persuasive Tanzanian authority in DPP v Salum Ali Juma, the Court held that Kenyan jurisprudence, notably Johana Ndungu v R, squarely recognizes the offence. The appellants were armed with pangas and rungus, acted in company with others, and used actual violence, satisfying the ingredients beyond reasonable doubt.
Competence of minor witnesses and voire dire
PW4 (aged 17) and PW5 (aged 19) were competent witnesses and not children of tender years, so no voire dire examination was required.
Guided by Section 2 of the Childrens Act No. 8 of 2001, defining a child of tender years as one under ten years, the Court held both witnesses were above ten years at the time of the offence and when they testified. Section 125 of the Evidence Act renders all persons competent unless prevented by tender years from understanding questions.
Failure to call the investigating officer
Failure to call the investigating officer and other witnesses was not fatal to the prosecution case.
Relying on Section 143 of the Evidence Act and Kihara v Republic, the Court held that no particular number of witnesses is required. The investigating officer would merely have repeated what the eyewitnesses stated; his evidence would not have been prejudicial to the appellants and he was not an eyewitness.
Consideration of the defence and alibi
The High Court adequately evaluated the defence testimony, considered the 2nd appellant's alibi, and addressed the family acrimony and land dispute; no error of law arose.
The Court examined the High Court's judgment and found that the judges had expressly considered the defence case, found no frame-up, and concluded the defence did not cast reasonable doubt. The principle in Ouma v R that the court must have the accused's defence in mind was aptly followed.
Legal principles established
#- On a second appeal under Section 361 of the Criminal Procedure Code, only matters of law fall for consideration and the Court will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of evidence, or wrong principles.
- Where the only evidence against a defendant is evidence of identification or recognition, the court must examine it carefully and be satisfied the circumstances of identification were favourable and free from the possibility of error before basing a conviction on it.
- A charge of robbery with violence under Section 296(2) of the Penal Code has three essential ingredients, proof of any one of which suffices for a conviction.
- Failure to call a witness, including the investigating officer, can only be construed against the prosecution if it is demonstrated that the witness's evidence would have been against the prosecution.
- The age of majority is not the age used to determine competence to testify; a child under ten years is a child of tender years requiring voire dire, and persons above that age are competent witnesses.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Convictions and sentences imposed by the two courts below left undisturbed
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 at Kakamega
- H.C.CR. A No. 76 of 2010
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law)
Relief refused
#Quashing of convictions and setting aside of death sentences for robbery with violence
The Court found the appellants were positively identified and the ingredients of the offence were proved beyond reasonable doubt
Declaration that the offence of robbery with violence does not exist in Kenyan law
The Court held that Kenyan jurisprudence establishes the offence, citing Johana Ndungu v R
Costs
No costs order appears 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.
For the reasons given, we find that this appeal has no merit and is hereby dismissed.
Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings.
It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
Identification by voice nearly always amounts to identification by recognition. Yet here as in any other cases care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring safe identification.
Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently.
No particular number of witnesses shall in the absence of any provision of law to the contray be required for the proof of any fact
we are satisfied that both PW4 and PW5 were competent witnesses and were not children of tender years to require a voire dire examination in order to give evidence
In Tayab - v - Kinanu (1983) KLR 114, this Court stated that an appellate court will not interfere with a trial court’s finding of fact based on assessment of the credibility and demeanour of witnesses who give evidence, unless it was wrong in principle.
Issues in the judgment
#The citation for Gikonyo Karume & Another v R appears as {1900} KLR 23, an evidently erroneous year for a reported Kenyan case
The citation for Abdalla bin Wendo & Another v R appears as {195} 20 EACA 166, a typographical error for a year
Wamunga v Republic is cited twice with inconsistent page citations ((1989) KLR 424 and {1989} KLR 42)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P M, L M & P N v Republic (Criminal Appeal 60 of 2014) [2014] KECA 188 (KLR)", Case Analysis (2014). Criminal Appeal No. 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/188/eng@2014-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.