Kennedy Ochieng Okombo v Republic [2015] KECA 858 (KLR)
The bottom line
#Kenya's Court of Appeal freed a robbery convict because police failed to hide his scar during an identification parade and a key witness was never called.
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 first appellate court erred in holding that conditions for identification of the appellant were proper
- 2.Whether the first appellate court wrongly relied on the identification parade when the complainants had not made a first report describing the attackers
- 3.Whether the High Court erred in relying on the doctrine of recent possession where a month separated the robbery from recovery of the mobile phone, an easily disposable item
Key legal issues
#Conduct of identification parade where the suspect bears a distinctive disfigurement
The parade was not properly conducted because the police failed to conceal the appellant's scar, which was the very feature used to identify him.
Rule 6(iv)(d) of The Force Standing Orders requires that a suspected person be placed among persons of similar appearance and, where he suffers a disfigurement, steps be taken to ensure it is not especially apparent. The appellant's scar above the left ear was a distinguishing feature relied on by the identifying witnesses, yet the police took no steps to conceal it. The courts below dealt with the issue casually, wrongly holding that people with similar scars could not be found.
Recent possession where the recovered item passed through hands of uncalled witnesses
The doctrine of recent possession could not stand because the chain of the mobile phone's movement from the appellant was incomplete without the evidence of Ben, who was not called, making the evidence hearsay.
The evidence showed the phone was bought from Ken through a boy called Ben, who was never called as a witness. Without Ben's testimony the links in the chain of possession were unproven, creating a break in causation, and the courts below relied on hearsay. That broke the inference of constructive possession needed for the doctrine of recent possession.
Scope of the Court of Appeal's jurisdiction on a second appeal
The court is confined to issues of law only, matters of fact having been tried and retried by the two courts below.
Section 361(1)(a) Criminal Procedure Code constrains the second appellate court to questions of law. The court framed its review of the facts only to determine whether the two courts below handled the case according to their mandate and whether issues of law arose. It followed John Gitonga alias Kados v Republic and M'Riungu v Republic on this limitation.
Legal principles established
#- On a second appeal the Court of Appeal is confined to issues of law and must not disturb concurrent findings of fact by the two courts below.
- Where a suspect suffers from a disfigurement such as a scar, the police are in law required to take steps to ensure it is not especially apparent in an identification parade; failure to do so prejudices the suspect and renders the parade improperly conducted.
- Where the chain of possession of a recovered stolen item includes an uncalled intermediary, reliance on that link amounts to hearsay and the doctrine of recent possession cannot be sustained.
Court orders
#- 1.The appeal is allowed
- 2.The appellant shall be set free forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Kisii HCCRA No. 55 of 2010
- Jurisdiction invoked
- Section 361(1)(a) Criminal Procedure Code (second appeal limited to issues of law)
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.
The totality of our findings is that this appeal succeeds and is hereby allowed. The appellant shall be set free forthwith unless otherwise lawfully held.
The police were required in law to take steps to ensure that the scar was not especially apparent as failure to do so prejudiced the appellant and the identification parade was therefore not properly conducted.
In any event without the evidence of Ben the two courts below erred in relying on what amounted to hearsay evidence. That demolishes the evidence on recent possession.
This being a second appeal, we are reminded of our primary role as the second appellate court namely to steer clear of all issues of facts and only concern ourselves with issues of law
Issues in the judgment
#The coram lists the appellate judges as 'KANTAI' while the signature block reads 'S. ole KANTAI'; the High Court judge is rendered both 'Asike Makhandia' and 'Asike-Makhandia, J (as he then was)' in the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Ochieng Okombo v Republic [2015] KECA 858 (KLR)", Case Analysis (2015). Criminal Appeal No. 45 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/858/eng@2015-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.