Dickens Odari Bige & another v Republic [2014] KECA 510 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that attempted robbery with violence carries the death sentence, and minor defects like an unsigned charge sheet won't overturn a conviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an unsigned charge sheet is invalid and incapable of founding criminal proceedings or is a curable defect
- 2.Whether the concurrent findings on identification by recognition were safe
- 3.Whether the first appellate court failed in its duty to re-evaluate the evidence
- 4.Whether the appellants were entitled to the lesser sentence under Section 389 of the Penal Code for attempted robbery contrary to Section 297(2)
Key legal issues
#Validity of an unsigned charge sheet
The failure to sign a charge sheet is a curable defect; Section 90(2) of the Criminal Procedure Code validates proceedings and Section 382 cures errors not occasioning a failure of justice
The Court acknowledged a legal requirement that a charge sheet be signed, but held that Section 90(2) validates proceedings affected by defects in the charge. Additionally, since the charge sheet was admitted, proceedings took place and no miscarriage of justice was shown, Section 382 cured the omission. The ground attacking the charge sheet therefore failed.
Identification by recognition by a single witness
Concurrent findings that the complainant recognized the appellants, his close neighbours, under favourable conditions (electric lights on, extended interaction, immediate naming of attackers) were safe and not perverse
Both subordinate courts warned themselves of the dangers of convicting on the evidence of a single identifying witness. The complainant named the appellants immediately to neighbours and to police the same morning, knew them as neighbours whose homes were metres apart, and the electric lights were on during the attack. This Court, on a second appeal, could not disturb these concurrent findings of fact.
Interaction of Section 389 and Section 297(2) of the Penal Code on sentence
Section 297(2) prescribes a specific punishment (death) for attempted robbery with violence, and is therefore outside the remit of Section 389; the seven-year maximum does not apply
Section 389 applies only where no other punishment is provided for the offence attempted. Section 297(2) is a wholesome provision on its own prescribing death for attempted robbery with violence where aggravating features exist. The decision in Evanson Muiruri Gichane giving effect to a seven-year maximum was made per incuriam, and the Court adopted the reasoning in Charles Mulandi Mbula and Mulinge Maswili.
Legal principles established
#- A second appeal is confined to points of law; the Court will not interfere with concurrent findings of fact of the two lower courts unless they are based on no evidence or are perverse
- Section 389 of the Penal Code does not apply where the offence attempted carries a specific and distinct punishment; attempted robbery contrary to Section 297(2) attracts the death sentence notwithstanding Section 389
- Defects, errors or omissions in a charge sheet that do not occasion a failure of justice are curable under Section 382 of the Criminal Procedure Code
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of death imposed by the lower courts are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega HCCRA No. 143 & 144 of 2005
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code
Relief refused
#Benefit of the lesser sentence of seven years under Section 389 of the Penal Code
Section 297(2) of the Penal Code is a complete provision providing its own sentence of death, ousting Section 389
Quashing of conviction based on the unsigned charge sheet
Any defect was cured by Section 90(2) and Section 382 of the Criminal Procedure Code as no failure of justice was occasioned
Costs
No order as to costs is recorded 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.
A second appeal must be confined to points of law and this court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
It is clear from a plain reading of Section 389 of the Penal Code that it applies only where no other punishment is expressly prescribed in the penal statute.
With respect, therefore, it would appear that the decision in Evanson Muiruri Gichane(supra) was made per incuriam.
In a nutshell this appeal has no merit and it is accordingly dismissed.
Issues in the judgment
#The appeal-from line records the High Court judgment date as '4st July, 2008', an apparent typographical irregularity in the date
The judgment attributes Section 89 subsections (3), (4) and (5) to a charge/complaint provision but reproduces subsections (3)-(5) with numbering that does not match the quoted text structure; minor transcription irregularity
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdalla Kirao Mkare Wanje & 2 others v Republic [2016] KECA 399 (KLR)[2016] KECA 399 (KLR)15 Jul 2016followed
- Banking Insurance & Finance Union (Kenya) v Kenya Commercial Bank Ltd [2014] KEELRC 1155 (KLR)[2014] KEELRC 1155 (KLR)9 Apr 2014
Cite this brief
#Cite this brief
Caselaw, "Dickens Odari Bige & another v Republic [2014] KECA 510 (KLR)", Case Analysis (2014). Criminal Appeal No. 649 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/510/eng@2014-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.