Odongo & another v Republic (Criminal Appeal 148 of 1990) [1994] KECA 104 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts must first judge whether an accomplice is believable, then look for supporting evidence, before issuing any warning.
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 evidence of an accomplice required the court to warn itself and seek corroboration, and in what sequence
- 2.Whether the two courts below correctly found the evidence of the accomplice PW16 credible and corroborated
- 3.Whether the appellants' convictions were supported by the evidence beyond reasonable doubt
Key legal issues
#Sequence of credibility, corroboration and warning in accomplice evidence
Credibility must be assessed first; if the accomplice's evidence is not credible, no corroboration or warning can cure it. Corroboration is then sought only for credible evidence, and a formal warning is required only when conviction rests solely on uncorroborated accomplice evidence.
The court corrected the trial and High Court approach: a lie cannot be corroborated, nor can one act on a lie on the pretext of having warned oneself. Once credibility is established and corroboration exists, the need to warn does not arise. The warning requirement arises only in the rare case of conviction on uncorroborated accomplice evidence.
Whether possession of stolen goods shortly after the robbery corroborated the accomplice's evidence
Yes. The appellants were found in possession of items stolen from Sodha's shop barely one hour after the robbery, and the 1st appellant's claim to have bought them from the acquitted Edward was demonstrably false, the receipts being stolen and false.
The magistrate believed the accomplice PW16 and found corroboration in the appellants' possession of the stolen items within about an hour. The 1st appellant's receipts were false and stolen from the shop, his former employer denied paying him the sum he alleged, and he instructed the taxi driver to avoid police. These concurrent findings of fact were open to the lower courts and bind this second appeal on facts.
Weight of dock identification without an identification parade
The evidence of PW2, who did not know the appellants and for whom no identification parade was held, was weakened to no more than dock identification, though it remained part of the totality of evidence.
PW2 did not know the appellants before, they were not arrested in his presence, and no parade was conducted for him to identify them. His court identification remained mere dock identification, considerably weakening his evidence. Nonetheless, the combined evidence of PW3 and PW16, corroborated by possession of the stolen goods, proved guilt beyond reasonable doubt.
Whether the second appeal court may interfere with concurrent findings of fact
No. The court found no reason to depart from the concurrent finding that the 2nd appellant was a full participant and that the contention he boarded at Kondele was false.
As a second appellate court, the Court of Appeal considers matters of law only. Both courts below had repelled the 2nd appellant's contention as false; nothing urged by counsel for either appellant convinced the court that the appellants were wrongly convicted. The concurrent factual findings therefore stood.
Legal principles established
#- In a second appeal, only matters of law fall for consideration
- The first duty of a court considering accomplice evidence is to assess credibility; only credible evidence can be corroborated, and a warning is needed only where a court convicts on uncorroborated accomplice evidence
Court orders
#- 1.The appeals against conviction of both appellants be and are hereby dismissed
- 2.The death sentences imposed on each appellant stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Second appeal to the Court of Appeal, on matters of law only
Relief refused
#Appeal against conviction for both appellants
Concurrent findings of fact by the two courts below were sound and the prosecution proved the charge beyond reasonable doubt
Costs
No costs order made
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 appellants now appeal to this Court a second time and that being so, only matters of law fall for our consideration.
When considering the evidence of an accomplice, the first duty of a Court is to decide whether that evidence is credible.
The need for the Court to warn itself arises only on those rare occasions when the Court is prepared to base a conviction solely on the uncorroborated evidence of an accomplice.
Like the two courts below, we are satisfied that the prosecution proved its charge against each of these appellants beyond any reasonable doubts and that being our view of the matter, we order that their appeals against conviction be and are hereby dismissed.
The sentence imposed on each of them was the only lawful one and we have nothing to do with it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo & another v Republic (Criminal Appeal 148 of 1990) [1994] KECA 104 (KLR)", Case Analysis (1994). Second appeal from Kisumu (criminal appeals against conviction of robbery with violence); Court of Appeal Criminal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/104/eng@1994-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.