[2025] KECA 981 (KLR)

Otuoma v Republic (Criminal Appeal 86 of 2020) [2025] KECA 981 (KLR) (30 May 2025) (Judgment)

Neutral citation: [2025] KECA 981 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Criminal Appeal 86 of 2020

MSA Makhandia, HA Omondi & LK Kimaru, JJA

May 30, 2025

Between

Jerim Otieno Otuoma

Applicant

and

Republic

Respondent

(Being an appeal from the judgment of the High Court at Kisumu (D. S. Majanja, J.) dated 5th December 2016 in HCCRA No 10 of 2016)

Judgment

1. Jerim Otieno Otuoma, the appellant, was charged with two offences of robbery with violence and defilement. The robbery occurred on 6th May 2014, at around 5:30 am in Nyangeta Village, Kisumu County, where it was alleged that while armed with a knife, the appellant robbed CAO (real name withheld) of various items, including a mobile phone, clothes, shoes, books, and cash amounting to Kshs. 20,400/= during which he threatened to use actual violence against CAO.

2. The particulars of the second charge of defilement were that on the same day, place and time he unlawfully caused his penis to penetrate the vagina of CAO, a 14-year-old child.

3. The appellant pleaded not guilty to both counts, but after a full trial, he was convicted on both counts and received a death sentence for the robbery with violence count and 20 years imprisonment for the second count. The court ordered, and rightly so, in our view, that the second sentence be held in abeyance pending the execution of the first sentence. This conviction and sentence led to the appellant’s first appeal in the High Court of Kenya at Kisumu.

4. The High Court, after considering the appeal, found no merit in it and dismissed it in its entirety.

5. It is against this judgment of the first appellate court that the appellant, who is dissatisfied with it, has now moved to this Court on a second and perhaps last appeal. In his Memorandum of Appeal, the appellant has through Pamela Omondi, learned counsel raised four grounds to wit that the: identification evidence was insufficient to find a conviction; doctrine of recent possession was misapprehended; mandatory death sentence imposed was unconstitutional; and that the court relied on discredited and uncorroborated evidence from an accomplice.

6. Before we delve into the determination of the appeal, it is necessary to revisit the evidence presented by the prosecution before the trial court that led to the conviction of the appellant, albeit in an abridged manner. We do so while appreciating that the said evidence was evaluated by the trial court, re-evaluated, and re- appraised by the first appellate court before those courts reached their determinations, hence the need not to reproduce the evidence in detail.

7. On 6th May 2014, CAO (PW 1), a 14-year-old Form 1 student, travelled by night bus from Mombasa to Kisumu. At 5:30 am, she alighted from the bus at the Kisumu Bus Park. While waiting for transport to her intended destination in Mbale township, a motorbike rider approached and offered to take her to the stage where she could catch a vehicle to her destination. She boarded the motorbike but soon noticed that they were headed in a different direction from the would-be stage. The rider informed her that the stage had been relocated and continued to ride away from town, claiming the destination was further ahead. Along the way, he suddenly switched off the motorbike's headlights within a sugarcane plantation. He then stopped and ordered her to alight. As she was doing so, he grabbed her and told her to remain silent. He brandished a knife and threatened to stab her if she screamed. He then took her purse, removed her student ID card, and threw it back at her, along with Kshs. 100/=. He also took her mobile phone from her purse. He then ordered her to remove her clothes and lie down. When she complied, the appellant proceeded to defile her. After the sexual assault, the appellant rode away with her suitcase and school bag.

8. PW1 ran towards the road, where she encountered two motorbike riders who helped her contact her brother whom he informed about the incident. She was thereafter taken to Kibos Police Post, where she filed a complaint and recorded a statement. She was thereafter referred to Kisumu East District Hospital for medical examination and treatment. On 10th June 2014, she was informed that a suspect had been arrested, and she was required to attend a police identification parade at the Kibos Police Post. At the identification parade conducted by PW3, IP Sang, the Deputy Officer Commanding Kondele Police Station, she was able to identify the appellant as the person who robbed and defiled her on the material day. After the parade, she was shown a black Samsung mobile phone recovered from a suspect, which she confirmed as hers.

9. PW2, Peter Otieno, knew the appellant as a fellow motorbike rider in Kondele area. On 1st June 2014, the appellant, whom he had previously lent 100/= approached him and gave him a black Samsung mobile phone with an offer that if he gave him some more money, then that would settle the previous debt that he owed him. PW2 took the phone, but after three days, he gave it to his brother, Caleb Owino, who advanced him 1000/= as part purchase price, and he gave the appellant the money. Later, PW2 was arrested by the police on account of his earlier possession of the mobile phone, to whom he disclosed that the appellant was the seller of the phone, and that is how the appellant was arrested a day after the arrest of PW2 with his assistance.

10. PW4, PC Ruto, received a phone call from PW1’s brother to assist PW1 in whichever way he could. He immediately swung into action by issuing her with the P3 form and escorted her to the Kisumu East District Hospital, where she was examined and treated by PW7, Dr. Robert Omollo, a medical officer at the facility. The examination revealed that PW1 had fresh bruises on her buttocks and back, her hymen was not intact, the wall of her vagina was red with bloodstains, indicating forceful penetration.

11. As part of the investigations, PW4 began tracking PW1’s stolen phone through Safaricom. The user, Caleb Owino, was subsequently located and arrested. He, however, informed him that his brother, PW2, had sold him the phone. PW5, PC Isaac from Kibos Police Post, was responsible for the arrest of the appellant after receiving information from PW2 that the appellant was operating his boda boda business between Kisumu Town and Kondele. He managed to track the appellant after calling him, and he was arrested and taken to Kibos Police Post. PW6, Daniel, the Chairman of the Konalejo Motorbike Youth Group, in which the appellant was a registered member, confirmed the membership of the appellant in the group.

12. The Investigating Officer, PW8, Senior Sergeant Wesonga, provided a detailed account of the investigations, the subsequent arrest of the appellant, and the decision to charge him with the offences. Finally, PC Egesa a Scenes of Crime Officer, took photographs of the appellant’s motorcycle registration number KMDG 281E, suspected to have been used in the commission of the offences.

13. Put on his defence, the appellant elected to give sworn testimony and called no other witnesses. He recounted his arrest at Konalego and being taken to Kibos Police Post. He was subsequently subjected to an identification parade and he was identified by PW1. He, however, impugned the parade on the grounds that he was taken under a big tree for interrogation by PC Kivuva, during which he saw two Catholic nuns and a girl in a school uniform alighting from a vehicle. Afterwards, the identification parade was conducted, and he was allegedly identified by the very girl in the school uniform. However, he refused to sign the parade form because he had not been properly identified by PW1. He otherwise denied committing the offences.

14. When the appeal came up for plenary hearing, Ms. Omondi, learned counsel, appeared for the appellant, whereas Mr. Okango, learned Assistant Director of Public Prosecutions, appeared for the respondent. The appeal was canvassed by way of written submissions with limited oral highlights.

15. The appellant submitted that the identification evidence was flawed because the appellant did not consent to participate in the parade but was forced to do so. She argued that PW1 had seen the appellant prior to the parade, which compromised it. She also argued that the identification parade officer violated section 6 (iv) of the Force Standing Orders by not ensuring that the parade members wore similar shoes. The appellant contended that since he was identified by his black open shoes, it was necessary for the parade members to wear similar shoes. Counsel further contended that the trial court violated section 173 of the Evidence Act by not assisting him in calling PC Kivuva as a witness, which was crucial for a just decision. Counsel placed reliance on the case of Henry Kimathi vs. Republic (2006) eKLR - Criminal Appeal No. 10 of 2002 (UR), where this Court held that failure by the court to assist an accused in calling a witness for his defence amounted to a violation of his constitutional rights.

16. It was counsel’s further submissions that the first appellate court relied on fanciful evidence by asserting that PW1's spontaneous reaction of crying when she identified the appellant provided further assurance that the identification was watertight. Counsel referred to the case of Maitanyi vs. Republic [1986] eKLR, in which it was stated that most witnesses do not correctly identify their attackers, even in daylight, to push the point that his identification was not free from the possibility of error. On the doctrine of recent possession, counsel submitted that PW2 was an accomplice witness since he was found in constructive possession of the stolen phone. He argued that the court needed to warn itself against the danger of relying on the evidence of an accomplice and seek corroboration. According to the appellant, the evidence of PW2 was discredited as he did not provide any sale agreement or written document to confirm the transaction between him and the appellant.

17. It was argued that since PW2 was found in possession of the phone, the doctrine of recent possession was inapplicable to the appellant. Counsel submitted that, therefore, the two courts below erred in misapprehending the doctrine of recent possession. According to counsel, all facts that would have justified the invocation of the doctrine were not proved beyond reasonable doubt by the prosecution. That in the case of Mwangi vs. Republic [1951] EA 104, the court held that when an exhibit is not found in possession of the accused person, then he is not liable for it. The prosecution did not provide evidence to prove beyond a reasonable doubt that the appellant had knowledge of the stolen phone found in PW2's custody. Counsel relied on the case of Karanja & Another vs. Republic [1990] KLR, in which it was reiterated that accomplice evidence has to be corroborated. The evidence on record showed that the phone was not found in the possession of the appellant but of PW2. He was therefore an accomplice.

18. It was also submitted that the two courts below committed an injustice to the appellant when they failed to address the issue of failure to call PC Kivuva as a witness for the appellant.

19. On sentence imposed, counsel submitted that the two courts below erred by not finding that the mandatory nature of the death sentence imposed on the appellant in respect of the first count was unconstitutional. She reasoned that the Supreme Court’s decision in Francis Karioko Muruatetu & Others vs. Republic [2017] eKLR (Muruatetu 1) outlawing the mandatory nature of the death sentence in cases of murder as unconstitutional applied equally to other capital offences. Counsel, therefore, submitted that the sentence imposed by the trial court and upheld by the first appellate court was harsh and unconstitutional. Counsel, therefore, urged this Court to interfere with the death sentence and consider a more lenient custodial sentence. In support thereof, counsel cited cases such as Wycliffe Wangusi Mafura vs. Republic (Eldoret Court of Appeal Criminal Appeal No. 22 of 2016); Paul Ouma Otieno & Another vs. Republic [2018] eKLR and Jesee Minja Karagu vs. Republic [2020] KEHC 3346 (KLR). In wrapping her submissions on this aspect, counsel pointed out that the appellant had already spent 10 years in prison custody and prayed for leniency and consideration of mitigating factors offered during the trial. The appellant thus prayed that the appeal be allowed.

20. In opposing the appeal, Mr. Okango submitted that the first appellate court was properly guided by the law and correctly determined the first appeal and, therefore, this Court ought to uphold that judgment. He argued that there was full compliance with the Identification Parade Rules and that the appellant's claim of not consenting to the parade does not invalidate it.

21. Regarding the failure to call PC Kivuva, Mr. Okango submitted that this issue is being raised for the first time in this Court and should be disregarded. The name of PC Kivuva first appeared during the appellant's defence in cross-examination by the prosecution. The evidence of PW3, who stated that the PW1 was kept in a house 100 metres from the parade site, corroborated PW1's statement. Therefore, the identification parade was conducted according to the law. Even if the identification parade was flawed, the appellant was still correctly convicted based on the doctrine of recent possession.

22. On identification, counsel submitted that the appellant and PW1 spent more time together beyond the initial interaction, thereby diminishing the chance of mistaken identity; the interaction occurred in a well-lit place, and the meeting was not hostile, which supported the reliability of the identification of the appellant by PW1.

23. Regarding accomplice evidence, counsel submitted that PW2 was not an accomplice, and even if he was, the appellant never mentioned it to the court; that PW2's evidence was credible, cogent, and believable. It is pointed out that the investigations involved tracking the stolen phone; and each individual found to have been in possession thereof provided satisfactory explanations as to their possession, ultimately leading to the appellant's arrest. Lastly, regarding the constitutionality of the mandatory death sentence, Mr. Okango submitted that the Supreme Court had subsequently in the case of Francis Karioko Muruatetu & Another vs. Republic [2021] eKLR, (Muruatetu 2) limited the finding of unconstitutionality of mandatory sentences to those imposed on murder convicts under sections 203 and 204 of the Penal Code. The death penalty therefore still remains a legal sentence with regard to other capital offences, such as robbery with violence.

24. The role of this Court on second appeals was set out in the case of Karani vs. Republic [2010] 1 KLR 73, thus:“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior court on fact unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matter they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as a matter of law.”

25. We have carefully considered the record of appeal, the judgments of the trial and the first appellate courts, the grounds of appeal, the respective submissions by learned counsel, and the authorities cited. The issues of law that the court would wish to address in this appeal are whether: the identification of the appellant was positive; the doctrine of recent possession; discredited and uncorroborated evidence of an accomplice, and mandatory death sentence imposed by the trial court and confirmed on first appeal by the appellant.

26. Dealing with the first issue, from the record, PW1 testified that after alighting at Kisumu Bus Park at daybreak, she was approached by a man on a motorbike, who engaged her in a conversation for about 10 minutes before agreeing to take her to the Mbale Bus Stage. This took place at 6. 00 am, during sunrise. It was, therefore, not so dark as to make it impossible for PW1 to see the appellant clearly, as to identify him subsequently. Besides, the area was also well-lit with electrical lights from nearby bars, allowing her to clearly see the appellant. Further, the initial encounter was not hostile. Again, the ride to the sugar plantation with PW1 as a pillion passenger was not a short one, which again accorded PW1 another opportunity for her to see the appellant from very close quarters. It was even closer when the appellant subsequently defiled her. We note that all through these encounters, the appellant was not camouflaged at all to make his identification difficult. Small wonder that she even described him to the police as a short and stout person wearing black open shoes. Indeed, during the police identification parade, she was able to identify him by the very shoes. Though the appellant claimed that PW1 did not provide his description to the police in her initial report, it is obvious this claim has no legs to stand on. We have no doubt at all that the circumstances obtaining favoured positive identification of the appellant by PW1.

27. However, we note this identification was by a single witness. This Court has, on matters of identification, variously restated that such evidence be treated with care, caution, and greater circumspection for the reason that it is possible for an identification witness to be honest but mistaken and for a number of witnesses to all be mistaken. The predecessor of this Court in Abdala Bin Wendo & Another vs. R. [1953] 20 EACA at P.168 expressed itself as follows:“Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness can be accepted as free from the possibility of error.”

28. In Geoffrey Muchugia Gitonga & Another vs. Republic [2020] KECA 746 (KLR), this Court again stated:“Evidence of visual identification in criminal cases can bring about miscarriages of justice, and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”

29. We are satisfied and as we have demonstrated that, the two courts below bore in mind the foregoing and indeed factored the same in their determinations. We note that the appellant has taken issue with the conduct of the police identification parade.

30. The correct procedure for conducting an identification parade is provided for in the National Police Service Standing Orders. For an identification parade to be successful, and of evidential value, the identification rules ought to be adhered to strictly.

31. This Court in Samuel Kilonzo Musau vs. Republic [2014] eKLR stated:“The purpose of an identification parade, as explained in Kinyanjui & 2 Others vs. Republic (1989) KLR 60:“is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion.”It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.”

32. The rules and procedure of identification as per the National Police Service Standing Orders were expounded further in the case of Patrick Kimanthi vs. Republic [2018] eKLR as follows:a.The accused has the right to have an advocate or friend present at the parade;b.The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness;c.Witnesses should be shown the parade separately and should not discuss the parade among themselves;d.The number of suspects in the parade should be eight (or 10 in the case of two suspects);e.All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race;f.Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; andg.As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.

33. In Simiyu & Another vs. Republic [2005] 1 KLR 192, this Court emphasized the importance of proper identification procedures and the need for caution when relying on identification evidence. The court stated:“In every case in which there is a question as to the identity of the accused, the fact of their having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the persons who gave the description, and then by the persons to whom the description was given.”

34. Ms. Omondi submitted that the identification parade evidence was flawed because the appellant did not consent to participate in the identification parade, but was forced to do so despite his objections; that PW1 had seen the appellant prior to the parade; and that the identification parade officer violated section 6 (iv) of the Force Standing Orders by not ensuring that the parade members wore similar shoes. We have looked at the parade forms and note that such complaints were not raised or indicated therein. All that is indicated, is that when asked whether he would participate in the parade, or whether he was satisfied with the conduct of the same, all he did was to refuse to sign the parade form. This places this court in an awkward position in addressing the appellant’s concerns. The situation is compounded further by the contradictory stances held by the appellant over the matter. In one instance, he claims that, though he participated in the parade, he was not identified, next that though he participated in the parade he had already been exposed to the identifying witness and lastly, that though he did not wish to participate in the identification parade, he was nonetheless forced to do so. So which is which?

35. It is also not lost on us that the issue is being raised for the first time in this appeal, which is not permissible. Had it been raised in the two courts below and decisions made thereon, this Court would have been able to interrogate those determinations. In the absence of those decisions, this Court is hampered and cannot entertain the complaint on merit.

36. Turning to the doctrine of recent possession, it is clear that the doctrine allows the court to infer guilt of the possessor of recently stolen property in the commission of the offence that led to the loss of the said property. To invoke this doctrine, the prosecution must establish that the accused was found in possession of the item, the item was recently stolen, and it belonged to the victim. If these elements are proved, and the accused fails to provide a reasonable explanation for possessing the stolen property, a rebuttable presumption arises that the accused was involved in the theft or related offence. This is how it was succinctly put in the case of Eric Otieno Arum vs. Republic [2006] eKLR:“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”PW1 testified that she owned a black Samsung dual sim card cell phone, she had marked it with distinctive features. The phone was forcefully stolen from her during the robbery and defilement. The phone was subsequently recovered from the brother to PW2, to whom he had sold the phone. The appellant had given him the phone in satisfaction of a loan he had earlier extended to him earlier. Shown the recovered phone, PW1 positively identified it as hers and which had been stolen from her by the appellant. The appellant did not deny knowing PW2 nor the transactions involving the two with regard to the stolen phone. Nor did the appellant provide any reason(s) why would he falsely testify against him. It is also common ground that the phone was recovered hardly a month after it was robbed from PW1.

37. It would appear, given the circumstances, that the appellant was in constructive possession of the stolen phone. At law, a person with constructive possession stands in the same legal position as a person with actual possession. See Pius & Another vs. Republic (2022) KECA 460 (KLR). The compelling evidence indicates that the appellant had possession of the phone before he passed it over to PW2, who, in turn, sold it to his brother, Caleb Owino. All these transactions are traceable to none other than the appellant. So that though the phone was not physically found on his person, he was nonetheless the common denominator and was therefore in constructive possession of it throughout. That PW2 did not provide any sale agreement or written document to confirm the transaction between him and the appellant is neither here nor there. In the end, we agree with the findings of the two courts below that the doctrine of recent possession was properly invoked.

38. On the third issue of discredited, uncorroborated and accomplice evidence raised by the appellant, we are satisfied, just like the two courts below, that these accusations are hollow. The evidence was consistent that PW1 was robbed and defiled. The robbery was committed by none other than the appellant, who was identified at the various scenes of crime and on an identification parade. The evidence also demonstrated that the appellant was constructively found in possession of the stolen phone, which was positively identified by PW1. This evidence was not discredited at all despite intense cross-examination by the appellant. Indeed, it was corroborated in material particulars.

39. As for accomplice evidence, we are unable to discern how PW2 was an accomplice. PW2 merely knew the appellant as a fellow motorbike rider. The appellant borrowed money from him in exchange for a black Samsung mobile phone. The appellant did not dispute this evidence. He thereafter sold the phone to his brother. How does that make him an accomplice? Even if he was, the appellant never mentioned it to the court. The investigations involved tracking the stolen phone, and each individual found to have been in possession thereof provided satisfactory explanations as to their possession, ultimately leading to the appellant's arrest. The appellant offered no satisfactory explanation(s) as to his initial possession of the stolen phone.

40. To our understanding, in criminal law, an accomplice is someone who intentionally aids or assists another person in committing a crime, with the intent that the crime be committed. In other words, an accomplice, in law, is a person who becomes equally guilty in the crime of another by knowingly and voluntarily aiding the other to commit the crime. An accomplice is either an accessory or an abettor. The accessory aids a criminal prior to the crime, whereas the abettor aids the offender during the crime itself. See Benard Munungi Njau vs. Republic [1979] eKLR and Karanja & Another vs. Republic [1990] eKLR. Going by the above and the evidence on record, can PW2 pass the above test? We do not think so. In any case, section 141 of the Evidence Act lays down that an accomplice shall be a competent witness against an accused person, and a conviction shall not be illegal merely because it proceeds upon the uncorroborated evidence of an accomplice.

41. Lastly, on the mandatory death sentence, the constitutionality of it has been a subject of significant legal debate. In Muruatetu 1, the Supreme Court of Kenya declared the mandatory nature of the death sentence under section 204 of the Penal Code unconstitutional as it deprived the court of discretion to mete out a suitable sentence, having pondered over the mitigating factors during sentencing.

42. However, in Muruatetu 2, the same Supreme Court clarified that the decision declaring the mandatory nature of the death sentence unconstitutional applies only to sentences for murder under section 204 of the Penal Code. The court emphasized that the holding in the Muruatetu 1 did not extend to other capital offences. In the premises, the mandatory death sentence remains applicable to other capital offences such as robbery with violence under section 296 (2) of the Penal Code, which the appellant was charged with. See Wasali vs. Republic [2024] KECA 1214 (KLR). We implore counsel to appraise themselves of these developments in criminal jurisprudence so as to avoid raising the issue as a ground of appeal in future.

43. We are satisfied that, having found the appellant guilty, the court rightly imposed the commensurate sentence as per the law, and we find nothing to persuade us to change the verdicts of the two courts below.

44. In conclusion, we observe that neither of the parties addressed us on the conviction and sentence in respect of the second count of defilement, nor was it raised as a ground of appeal. We therefore take it that the appellant does not impugn the said conviction and sentence on this count.

45. Having addressed all the pertinent issues raised by the appellant and determined that they lack merit, we are satisfied that the appeal is devoid of merit with the consequence that it is dismissed in its entirety.

DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF MAY, 2025. ASIKE-MAKHANDIAJUDGE OF APPEALH. A. OMONDIJUDGE OF APPEALL. KIMARUJUDGE OF APPEAL