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Court of AppealPartially AllowedCriminal Appeal (not stated in judgment)

Eddie Odongo v Republic (Criminal Appeal 82 of 1983) [1983] KECA 48 (KLR)

Court of Appeal of Kenya
7 October 1983
CMC.B. MadanAKA.A. KnellerZCZ.R. Chesoni
1,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a co-accused's unsworn statement cannot be used as evidence against you, but Odongo's theft conviction still stood on strong independent evidence.

What this practically means

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Executive summary

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The appellant, Eddie Odongo, was convicted by the trial magistrate of house breaking and stealing contrary to sections 304(1) and 279(b) of the Penal Code and, in the alternative, of handling stolen goods by dishonestly retaining them contrary to section 322(1). He was sentenced to four years' imprisonment for house breaking, four years with five strokes of the cane for stealing, and the statutory minimum of seven years for handling. His first appeal was dismissed by Mbaya J in the High Court. On second appeal, the Court of Appeal (Madan, Kneller and Chesoni JJA) considered two principal issues. First, the trial magistrate had relied on the unsworn statement of the second accused, Richard Onen, who had been acquitted, in which he said the appellant claimed to have brought the goods from Uganda. The Court held, following Patrisi Ozia, Ezera Kyabamanamaizi, Usin and Chaama Hassan Hasa, that an unsworn statement that is not a confession is not evidence against a co-accused and should not have been used; but disregarding it, the evidence of recent possession and Monicah's independent testimony remained overwhelming, so the conviction on the main count stood. Second, on the alternative charge, the Court applied Kipsaina and Mumbi, holding that a charge of dishonest retention fails if the accused's explanation is reasonable and might possibly be true, and that knowledge must relate to the time of retention for the benefit of another. The cassette and cups had been stolen before the appellant entered Kenya. The appeal was therefore partially allowed: the conviction and seven-year sentence on the alternative charge were quashed and set aside, while the conviction on the main count and the sentences thereon were left intact.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the unsworn statement of a co-accused could properly be used as evidence against the appellant
  2. 2.Whether the conviction on the main count of house breaking and stealing was supported by the evidence
  3. 3.Whether the alternative charge of handling stolen goods by dishonestly retaining them under section 322(1) of the Penal Code was proved

Key legal issues

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01

Use of a co-accused's unsworn statement against the appellant

Holding

The trial magistrate erred in using the second accused's unsworn statement against the appellant, as it was neither a confession nor evidence on oath; however, the error occasioned no miscarriage of justice.

Reasoning

The second accused's unsworn statement undermined the appellant's defence, and the magistrate expressly relied on it. Following Murdoch v Taylor and the East African authorities, an unsworn non-confessional statement cannot be used against a co-accused. The Court disregarded it but held the remaining evidence of recent possession and Monicah's testimony was overwhelming, so the conviction stood.

p. 2
02

Proof of the alternative charge of handling stolen goods by dishonest retention

Holding

The alternative charge was not proved because knowledge or reason to believe the goods were stolen, and retention for the benefit of another, were not established.

Reasoning

The cassette and cups were stolen in May 1981 before the appellant came to Kenya. His explanation that he bought the cassette and cups was reasonable and might possibly be true, which suffices to defeat a charge of dishonest retention. Further, the ingredients of section 322(1) require knowledge at the time of retention and retention for the benefit of another, neither of which was proved.

p. 3
03

Scope of ingredients of section 322(1) of the Penal Code

Holding

The prosecution must prove the goods were stolen, the accused's knowledge or reason to believe at the relevant time, and dishonest retention, removal, disposal or realization by or for the benefit of another person.

Reasoning

Relying on Mumbi v Republic, the Court set out the elements of the statutory offence and held there is no longer an offence of retaining stolen property for oneself; the knowledge element must relate to the time of the retention, removal, disposal or realization. The first appellate court failed to address these elements, but being a point of law the second appellate court considered it.

p. 3
04

Assessment of the appellant's defence and credibility

Holding

The trial magistrate was entitled to believe Monicah's evidence and disbelieve the appellant, having seen and heard the witnesses.

Reasoning

The Court, as a second appellate court, declined to disturb concurrent findings of fact by the two courts below. Monicah testified that the appellant brought stolen hospital property home and threatened her; the magistrate's acceptance of her account over the appellant's explanation was a finding of credibility the appellate courts would not interfere with.

p. 2

Legal principles established

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  • An unsworn statement by an accused that is not a confession is not evidence against a co-accused and must not be taken into consideration against that co-accused.
  • A charge of dishonestly retaining stolen goods is not established if the accused's explanation is reasonable and might possibly be true, even if the court is not convinced it is true.
  • In the offence of retaining stolen goods under section 322(1), the knowledge or reason to believe must relate to the time of the retention, removal, disposal or realization for the benefit of another person; there is no offence of retaining stolen property for oneself.

Court orders

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  1. 1.The appeal against conviction on the main count of house breaking and stealing is dismissed
  2. 2.The appeal against the alternative charge of handling stolen goods contrary to section 322(1) of the Penal Code is allowed
  3. 3.The conviction on the alternative charge of handling stolen goods is quashed
  4. 4.The sentence of seven years' imprisonment on the alternative charge is set aside
  5. 5.The appellant shall remain in jail to serve the sentence on the main count

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CM
majority

Wrote the judgment

AK
majority

Wrote the judgment

ZC
majority

Wrote the judgment

On appeal from
High Court of Kenya
not stated
Jurisdiction invoked
Second appeal under the Criminal Procedure Code to the Court of Appeal (provision not expressly stated in the judgment)

Relief refused

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Quashing of conviction on the main count of house breaking and stealing

The evidence of recent possession of recently stolen property and the independent evidence of Monicah were overwhelming

p. 2

Costs

No costs order was made; the appellant is to remain in jail to serve the sentence on the main count.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we dismiss the appeal against the conviction on the main count of housebreaking and stealing, but the appeal against the alternative charge of handling stolen goods contrary to section 322(1) of the Penal Code is allowed; the conviction on that count is quashed and the sentence of seven years’ imprisonment is set aside.
p. 3Final orders - partial allowance of appeal
an unsworn statement is not evidence against a co-accused and (ii) as the statement was not a confession it could not be taken into consideration against a coaccused.
p. 2Unsworn statements of co-accused
a charge of dishonestly retaining, like one of receiving stolen property, is not established if the explanation given by the accused is reasonable and might possibly be true even if the court is not convinced that it is true
p. 2Standard for defeating a charge of handling stolen goods
in the offence of retaining stolen goods, the knowledge or reason to believe must relate to the time of the retention, removal, disposal or realization for the benefit of another person and (iv) there is no longer an offence of retaining stolen property for oneself.
p. 3Ingredients of section 322(1) handling
even where one accused gives evidence on oath, such evidence must be regarded with extreme caution when it is to be used against a co-accused.
p. 2Caution in using co-accused evidence
The appellant shall remain in jail to serve the sentence on the main count.
p. 3Sentence on the main count to stand

Issues in the judgment

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minor

Murdoch v Taylor is described in the judgment as evidence against a co-defendant, yet its report citation and the surrounding authorities concern the use of co-accused statements; the judgment itself states the co-accused's unsworn statement was evidence against a co-defendant while simultaneously holding unsworn non-confessional statements cannot be used against a co-accused.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Eddie Odongo v Republic (Criminal Appeal 82 of 1983) [1983] KECA 48 (KLR)", Case Analysis (1983). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/48/eng@1983-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.