Boniface Savali Mulyungi & another v Republic [2020] eKLR Case Summary

Court
Court of Appeal at Nairobi
Category
Criminal
Judge(s)
Ouko (P), Okwengu & Sichale, JJ.A
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Boniface Savali Mulyungi & another v Republic [2020] eKLR

1. Case Information:
- Name of the Case: Boniface Savali Mulyungi & Josphat Wambua vs. Republic
- Case Number: Criminal Appeal No. 150 of 2016
- Court: Court of Appeal at Nairobi
- Date Delivered: 23rd October 2020
- Category of Law: Criminal
- Judge(s): Ouko (P), Okwengu & Sichale, JJ.A
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving several legal issues, including:
- Whether the identification of the appellants was reliable.
- Whether the doctrine of recent possession applied in this case.
- The implications of failing to summon crucial witnesses.
- Whether the appellants’ alibi was adequately considered.

3. Facts of the Case:
The appellants, Boniface Savali Mulyungi and Josphat Wambua, were charged with robbery with violence for an incident that occurred on 27th March 2014, in Mwingi Township. The complainant, Esther Kilonzo, reported that while delivering mobile phone accessories, she was confronted by three men, one of whom brandished what she believed to be a pistol. The men stole her items and fled on a motorcycle. Witnesses, including a boda boda operator named Daniel Wambua, pursued the suspects. The appellants were later apprehended by the police, with the stolen items identified by the complainant. The 1st appellant claimed he had just arrived in Mwingi by bus and was arrested without involvement in the robbery, while the 2nd appellant claimed he was selling chicken and was arrested in a bar.

4. Procedural History:
The trial court convicted both appellants based on the evidence presented, including the identification of the stolen items and the circumstances of their arrest. They were sentenced to death. The High Court dismissed their first appeal, focusing on the issues of identification, the application of the doctrine of recent possession, and the handling of witness testimonies. The appellants then filed a second appeal to the Court of Appeal, challenging the conviction and seeking a reconsideration of their sentence.

5. Analysis:
- Rules: The court examined relevant statutes, particularly Section 296(2) of the Penal Code, which defines robbery with violence. The doctrine of recent possession was also a critical legal principle considered.
- Case Law: The court referenced the English case of R vs. Turnbull (1970) for guidance on identification evidence, emphasizing the need for caution in cases reliant on visual identification. Additionally, the case of Eric Otieno Arum vs. Republic (2006) was cited regarding the application of the doctrine of recent possession.
- Application: The court found that the identification of the appellants was not reliable, as the complainant and witnesses failed to provide descriptions of the robbers. However, the doctrine of recent possession was applied effectively since the appellants were found with items stolen just after the robbery. The court concluded that the prosecution had met the burden of proof in establishing the connection between the appellants and the stolen property.

6. Conclusion:
The Court of Appeal upheld the conviction based on the doctrine of recent possession, affirming that the items were positively identified as belonging to the complainant and were found in the appellants' possession shortly after the robbery. However, the court found that the death sentence was excessive given the circumstances and reduced it to 20 years of imprisonment.

7. Dissent:
There were no dissenting opinions noted in the judgment, as the ruling was unanimous among the judges.

8. Summary:
The Court of Appeal affirmed the conviction of Boniface Savali Mulyungi and Josphat Wambua for robbery with violence based on the doctrine of recent possession. However, it reduced their sentence from death to 20 years of imprisonment, highlighting the need for judicial discretion in sentencing. This case underscores the complexities of reliance on identification evidence in criminal cases and the importance of the doctrine of recent possession in establishing guilt.

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