THOMAS OCHIENG AJWANG vs REPUBLIC [1983] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that anyone caught with smuggled goods must prove that any exemption documents they rely on actually belong to 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 prosecution proved that the appellant was in possession of the uncustomed goods
- 2.Whether the goods were dutiable/uncustomed
- 3.Whether the appellant knew or ought reasonably to have known the goods were uncustomed
- 4.Whether the exemption forms tendered by the defence relieved the appellant of liability
Key legal issues
#Ingredients of the offence of possession of uncustomed goods under Section 185(d)(iii) of the Customs and Excise Act
The offence comprises proof of possession, dutiability of the goods, and knowledge that the goods were uncustomed; all were established against the appellant
The goods were brought into Kenya from Uganda by boat without payment of customs duty, were traced through Uyoma, Uholo market and Kisumu, and the appellant admitted transporting them to Kisumu. Though at seizure they were in the custody of Musembi pending onward transportation, the courts below found possession on the appellant's own admission, and the defence's own conduct showed knowledge that the goods were uncustomed.
Burden of proof on an accused who raises an exemption claim as a matter specially within his knowledge
While the accused need not prove his innocence, where he tenders evidence of a matter specially within his knowledge (such as exemption forms) he must show that it relates to him
The exemption forms tendered by the defence were not in the appellant's name and contained alterations, so the magistrate was entitled to reject them. The magistrate considered the forms with the whole evidence without placing any burden of proof on the appellant, and no contrary suggestion was made on appeal.
Effect of the High Court's setting aside of the forfeiture order
The High Court correctly set aside the trial magistrate's forfeiture of the motor vehicle because the gas cylinders were imported by boat, not by the appellant's vehicle
The subject-matter was 68 gas cylinders brought into Kenya from Uganda by boat. The trial magistrate's order of forfeiture of the appellant's motor vehicle was set aside by Patel J on the ground that the vehicle was not the means of importation. That finding was upheld; the second appeal concerned only conviction and sentence.
Legal principles established
#- The prosecution must prove three ingredients of possession of uncustomed goods: possession by the accused, that the goods were dutiable, and knowledge (actual or constructive) that duty had not been paid
- An accused person in a criminal case bears no burden of proving his innocence, but where he raises evidence of a matter specially within his knowledge, he must show that the evidence relates to him
Court orders
#- 1.The appeal to the Court of Appeal was dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- Criminal Appeal No 582 of 1982
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal from the High Court's first-appeal decision)
Relief refused
#Quashing of the conviction for being in possession of uncustomed goods
All ingredients of the offence under Section 185(d)(iii) of the Customs and Excise Act were proved
Costs
No costs order 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 case against the appellant was therefore proved as required by law and we order this appeal to be dismissed.
Being a criminal case the appellant did not have to prove his innocence but he produced evidence, the forms, which were a matter specially within his knowledge.
It is apparent from the line of defence adopted by the appellant that he knew the goods were uncustomed.
Issues in the judgment
#The coram records Chesoni as 'Ag JA' while the signature block uses 'AG JUDGE OF APPEAL'; the judgment is a certified copy and the neutral citation is absent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "THOMAS OCHIENG AJWANG vs REPUBLIC [1983] KECA 98 (KLR)", Case Analysis (1983). Criminal Appeal No 31 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/98/eng@1983-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.