Stenice Mkono Makayora v Republic [1981] KECA 38 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery-related appeal, confirming that raising complaints about a confession too late will sink them.
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 magistrate was right to refuse to transfer the case to another court on the appellant's objection to being tried by that magistrate
- 2.Whether the appellant's charge and caution statement was properly admitted in evidence and whether it was obtained by duress
- 3.Whether the magistrate complied with Section 211 of the Criminal Procedure Code
- 4.Whether the charges were defective
- 5.Whether the convictions for conspiracy to commit robbery and preparation to commit robbery with violence were properly founded on the evidence
Key legal issues
#Objection to trial magistrate and refusal of transfer
The magistrate rightly refused to transfer the case; the objection was spurious and the accused were unknown to the magistrate.
The appellant and second accused objected to the magistrate on grounds of perceived bias and refusal of bond. The magistrate stated the accused were unknown to him. Having considered the objection baseless, the appellate court held the refusal to transfer was proper and that the accused's subsequent refusal to cross-examine witnesses could not undermine the fairness of the trial.
Admissibility and voluntariness of the confession statement
The statement was properly admitted and was a full confession; the later allegation of duress was disbelieved because it was not raised at the earliest opportunity.
The appellant objected neither to the production of the statement before the magistrate nor in his first memorandum of appeal, raising duress only in a supplementary memorandum. The court reasoned that a genuine complaint of beating would have been lodged when the appellant had the opportunity before the magistrate. The statement contained details only the appellant could know and was corroborated by his presence armed at the Club.
Sufficiency of evidence of conspiracy and preparation to rob
Conspiracy was proved by the initial meeting and agreement on May 17 and the armed rendezvous at the Club on May 18; the toy pistol was a dangerous weapon for the second count.
The evidence showed the appellant and his co-accused met on May 17 and agreed to rob the Club, then gathered at the Club armed with a toy pistol and knives on the night of May 18. The confession, corroborated by their armed presence together, established both the conspiracy and preparation to commit robbery with violence.
Compliance with Section 211 of the Criminal Procedure Code and defective charges
The magistrate complied with Section 211 and the charges were not defective; the record contradicted the complaints in the memorandum of appeal.
The appellant elected to remain silent at the close of the prosecution case, stating he understood his rights and wished to keep quiet voluntarily, and called no witnesses. The court found the record itself demonstrated compliance with the statutory inquiry and that no defect in the charges was made out.
Legal principles established
#- A second appellate court will not disturb concurrent findings of fact made by the two courts below.
- An accused person's voluntary election to take no part in the trial after being informed of his rights does not vitiate the trial or the admission of his statement.
- An imitation firearm is deemed to be a dangerous weapon under the Penal Code read with Section 34(2) of the Firearms Act (Cap 114).
Court orders
#- 1.The appellant's second appeal is dismissed
- 2.The convictions and sentences imposed by the courts below stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Mombasa
- Not stated in judgment
- Jurisdiction invoked
- Second appeal under the Criminal Procedure Code provisions governing appeals from the High Court in criminal cases
Relief refused
#Setting aside of the conviction and admission of the confession statement
The complaint of beating and duress was not raised before the magistrate nor in the first memorandum of appeal, and the courts below made concurrent findings of fact which the second appellate court would not disturb
Transfer of the trial to another magistrate
The objection that the magistrate was impartial or had prejudged the case was baseless; the magistrate did not know the accused
Costs
No order as to costs was made in the judgment.
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 magistrate was right to reject the appellant and the second accused’s spurious objection.
We think that if the appellant was really beaten and forced to sign the statement he would, have lodged his complaint when given the opportunity, by the magistrate.
Like the two courts below who made concurrent findings of fact on this issue we are also satisfied that the appellant and the first and second accused were found sitting together at the Club
An imitation firearm is deemed to be a dangerous weapon for the purposes of the Penal Code Section 34(2), Firearms Act (Cap 114).
The appellant was properly convicted. His appeal is dismissed.
As Miller JA & Simpson Ag JA agree, it is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stenice Mkono Makayora v Republic [1981] KECA 38 (KLR)", Case Analysis (1981). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/38/eng@1981-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.