[2007] KECA 118 (KLR)
The Court of Appeal found that the High Court, as the first appellate court, failed in its legal duty to re-evaluate the evidence and provide reasons for distinguishing between the counts. All three counts of robbery with violence arose from the same transaction and circumstances, and the High Court gave no reasons...
Source-derived case information.
- Citation
- [2007] KECA 118 (KLR)
- Parties
- Appellant: Douglas Maina Gathogo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 230 of 2003
- Procedural Posture
- Criminal Appeal / Second Appeal (court of Appeal)
- Outcome
- Appeal allowed. Conviction quashed. Sentence set aside. Appellant to be released unless lawfully held for another cause.
- Judges
- CA Otieno
- Legal Topics
- Robbery With Violence, Identification Evidence, Appellate Review, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Maina Gathogo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal (court of Appeal)
Legal Issues
- 1 Whether the conviction of the appellant on count two of robbery with violence was safe and supported by evidence.
- 2 Whether the High Court, as the first appellate court, discharged its duty to re-evaluate the evidence and give reasons for upholding the conviction on count two while overturning convictions on counts one and three.
Ratio Decidendi
The Court of Appeal found that the High Court, as the first appellate court, failed in its legal duty to re-evaluate the evidence and provide reasons for distinguishing between the counts. All three counts of robbery with violence arose from the same transaction and circumstances, and the High Court gave no reasons for upholding the conviction on count two while overturning the others. The Court of Appeal agreed with the concession by the State that the conviction on count two was unsupportable, quashed the conviction, set aside the sentence of death, and ordered the appellant's release unless held for another lawful cause.
Court Disposition
Appeal allowed. Conviction quashed. Sentence set aside. Appellant to be released unless lawfully held for another cause.
Orders
- The appeal is allowed.
- The conviction on count two is quashed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Criminal Appeal 230 of 2003
DOUGLAS MAINA GATHOGO .………….....……………. APPELLANT
AND
REPUBLIC ……………………………………………… RESPONDENT
(Appeal from a Judgment of the High Court of Kenya
Nairobi (Mbogholi & Mutitu, JJ) dated 7th August, 2003
IN
H.C. Cr. A. No. 388 of 1999)
**********************
JUDGMENT OF THE COURT
Mr. Kaigai, the learned Senior State Counsel, conceded on behalf of the Republic that the conviction on count two which the superior court, on first appeal to that court, sustained against the appellant herein, is clearly unsupportable. The appellant Douglas Maina Gathogo had been tried alone on five counts of robbery with violence contrary to section 296 (2) of the Penal Code. The Principal Magistrate at Kibera had acquitted the appellant on counts four and five and the basis of the acquittal on those counts by the Magistrate was that the persons named as complainants in the two counts had failed to come and testify in court. The learned trial Magistrate was clearly right in acquitting the appellant on the two counts. But the Magistrate had convicted him on counts one to three and sentenced him to death. He appealed to the superior court and that court, in a judgment comprised in about one and a quarter typed pages contented itself by stating as follows:-
“The appellant was convicted on three counts of Robbery with Violence contrary to section 296 (2) of the Penal Code. The Judgment appealed against was delivered on the 7th day of April 1999 by Mrs. Ondieki Esquire (sic) a Senior Principal Magistrate based at Kibera, Nairobi. Being dissatisfied with such conviction and sentence the appellant filed an appeal before the High Court. The appellant challenged his conviction and sentence arguing that his identification was not positive given the prevailing circumstances. He also argued that his conviction was based on contradictory evidence and that his defence was not given due weight.
Mr. Kivihya supported both the conviction and the sentence imposed on the complainant (sic). We have closely studied the trial Magistrate’s record. It is our considered view that the appellant’s conviction in respect of count one and count three was unsafely arrived at and cannot be upheld. We therefore order that the conviction in respect of count one and count three be dismissed (sic) and the death sentence set aside.
As concerns count two we are fully satisfied that the conviction therein was arrived at on safe grounds and that the said conviction should be upheld. We also agree that the death sentence was properly arrived at. We therefore dismiss the appeal in respect of count two and uphold the death sentence. Order accordingly.”
That was all that the two learned Judges of the High Court found necessary to say on charges involving the very life of the appellant. All the three robberies were allegedly committed by the appellant jointly with others in the same transaction and under the same circumstances. The learned Judges did not state any single thing as to why they thought the convictions on count one and count three were not arrived at safely. They did not give even a single reason why they thought the conviction on count two was a safe one. If the lighting in the place where the robberies took place was not adequate for positive identification of the appellant, that fact would apply to all the three charges, and we are totally unable to find the basis for drawing a distinction between counts one and three, on the one hand, and count two, on the other hand. Clearly the High Court totally failed to perform its legal duty as a first appellate court as is set out in the case of OKENO V. REPUBLIC [1972] EA 32. Mr. Kaigai is clearly right in not supporting the conviction of the appellant on the remaining count two. We accordingly allow the appeal, quash the conviction on count two, set aside the sentence of death and order that the appellant be released from prison forthwith unless he be held for some other lawful cause. Those shall be our orders in the appeal.
Dated and delivered at Nairobi this 20th day of December, 2007.
R.S.C. OMOLO
……………………………
JUDGE OF APPEAL
E.O. O’KUBASU
………………………….
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
…………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.