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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 30 of 2013· [2015] KECA 227 (KLR)

Jared Otieno Ambego v Republic

Court of Appeal of Kenya
20 November 2015
1,898 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated a death sentence for robbery with violence, ruling judges have no discretion to impose lesser sentences under section 296(2).

What this practically means

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Executive summary

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The appellant was convicted by the trial magistrate on four counts of robbery with violence arising from a robbery at Bondo on 11th May 2010, in which a gang armed with an AK 47 rifle, pangas, rungus and iron bars robbed four complainants of items including a Nokia 1208 mobile phone. The trial court sentenced him to death on the first count. His first appeal to the High Court at Kisumu failed on conviction, but that court quashed the death sentence and substituted fifteen years' imprisonment, prompting the Director of Public Prosecutions to file a notice of enhancement of sentence. On second appeal, the appellant contended that the High Court erred in accepting an uncorroborated confession statement and that a trial within a trial was required. The Court of Appeal held that the confession was lawfully recorded under section 25A(1) of the Evidence Act and rule 14 of the Evidence (out of court confessions) Rules, 2009, in Kiswahili, before a Chief Inspector other than the investigating officer, with two relatives of the appellant's choice present and countersigning. As the appellant neither objected to production nor retracted the statement, no corroboration or trial within a trial was necessary, and the prosecution was not obliged to call the relatives. The Court further found the conviction sound on the doctrine of recent possession, the stolen phone having been recovered ten days after the robbery through a chain traceable to the appellant. On sentence, the Court applied Joseph Njuguna Mwaura, holding the death sentence to be the only lawful sentence for robbery with violence under section 296(2) of the Penal Code. The appeal against conviction was dismissed, the High Court's substituted sentence set aside, and the death sentence reinstated.

Key legal issues

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01

Admissibility of a confession statement recorded out of court

Holding

The confession was lawfully recorded under section 25A(1) of the Evidence Act and rule 14 of the Evidence (out of court confessions) Rules, 2009, in Kiswahili, before a Chief Inspector, with two relatives of the appellant's choice present and countersigning, and was never objected to or retracted

Reasoning

The recording officer was not the investigating officer and was of the required rank; the appellant chose two relatives to be present and countersigned the certificate; the officer certified in writing under rule 14 that the confession was not obtained by inducement, threat or promise. Since the statement was neither objected to nor retracted at trial, no trial within a trial was necessary and no corroboration was required.

p. 3
02

Whether the prosecution was obliged to call the relatives present at the recording

Holding

No; the confession not having been retracted, the prosecution was not required to call the relatives, and the appellant could have called them as defence witnesses

Reasoning

Because the appellant did not object to production or retract the statement, it remained unchallenged and voluntarily made. The presence of the relatives was established by the certificate they countersigned. The burden lay on the appellant, if he wished, to call them in his defence, which he failed to do.

p. 3
03

Sufficiency of identification and linking evidence

Holding

Conviction was properly founded on the doctrine of recent possession, the stolen phone having been recovered from a chain traceable to the appellant ten days after the robbery, coupled with the lawful confession

Reasoning

The complainants could not identify the robbers, but one stolen Nokia 1208 phone was recovered from Ngesa, who explained that the appellant had given it to him together with Kshs.700. The recovery occurred only ten days after the robbery and the appellant offered no reasonable explanation of how he obtained the phone, which, with the confession, established guilt.

p. 4
04

Legality of the substituted sentence for robbery with violence

Holding

The High Court erred in substituting the death sentence with fifteen years' imprisonment; section 296(2) of the Penal Code prescribes death as the sole sentence for robbery with violence

Reasoning

Section 296(2) prescribes that a person convicted of robbery with violence shall be sentenced to death with no alternative. Following the Court's decision in Joseph Njuguna Mwaura & 2 Others v Republic, which held the decision in Godfrey Mutiso v Republic per incuriam, the death sentence is the only lawful sentence for capital offences notwithstanding Article 26 of the Constitution. The appeal against conviction was dismissed but the enhancement issue allowed in the respondent's favour.

p. 4

Legal principles established

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  • A confession by an accused is inadmissible unless made in court or before a police officer of prescribed rank together with a third party of the person's choice
  • There is no rule of law requiring corroboration of a retracted confession, though it is improper to act upon it absent corroboration unless the court is satisfied of its truth
  • The only lawful sentence for robbery with violence under section 296(2) of the Penal Code is death

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Sentence of fifteen years' imprisonment pronounced by the High Court set aside
  3. 3.Death sentence handed down by the trial court reinstated
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A No. 192 of 2012
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code following an appeal from a conviction for robbery with violence

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, "Jared Otieno Ambego v Republic", Case Analysis (2015). Criminal Appeal No. 30 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/227/eng@2015-11-20

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