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Court of AppealDismissedCriminal Appeal No. 170 of 1988· [1997] KECA 359 (KLR)

PATRICK MKONJI MTAMBO vs REPUBLIC [1997] KECA 359 (KLR)

Court of Appeal of Kenya
7 November 1997
JGJ.E. GicheruALA.A. LakhaSBS.E.O. Bosire
2,328 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a repudiated confession implicating a co-accused is weak evidence, but independent corroboration can still sustain a criminal conviction.

What this practically means

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Executive summary

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The appellant, then Officer-in-Charge of G.K. Prison, Kakamega, was jointly charged with two co-accused before the Principal Magistrate's Court at Kisumu with twelve counts of stealing by persons employed in the public service contrary to section 280 of the Penal Code, involving sums totalling K.Shs. 40,299/- reflected in twelve payment vouchers for travelling and subsistence allowances. The vouchers were supported by fictitious Transport-Cash Payment Schedules naming prison officers who had not travelled or did not exist. The appellant authorised and signed for receipt of the payments. He was convicted and sentenced to three years imprisonment on each count, concurrent. His first appeal to the High Court (Aragon & Mbaluto, JJ.) was dismissed on 6th October 1988. On second appeal, his counsel argued that the second accused's repudiated extra-judicial statement under inquiry was evidence of the weakest kind requiring corroboration which was too weak to sustain conviction, that common intent was not proved, and that evidence of overall over-expenditure of K.Shs. 3,290,157/65 was prejudicial. The Court of Appeal (Gicheru, Lakha and Bosire, JJ.A.), in a single judgment of the court, applied Anyuma s/o Omolo and Kinyua and M'Inanga on the weak evidential status of a repudiated confession implicating a co-accused, but found ample corroboration in material particulars: the document examiner's findings, denials by named officers, the duty roster, and the omission of the vouchers from the prison cash and vote books. The excess-expenditure evidence was held non-prejudicial since its exclusion would not have affected the convictions. The second appeal against conviction was dismissed in its entirety.

Key legal issues

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01

Use of a repudiated extra-judicial statement against a co-accused and the sufficiency of corroboration

Holding

The repudiated statement under inquiry was properly admitted after a trial within a trial and treated as accomplice evidence requiring corroboration; the documentary and testimonial evidence corroborated it in material particulars, sustaining the conviction.

Reasoning

The trial magistrate warned himself and treated the second accused's repudiated statement as accomplice evidence requiring corroboration. The corroboration came from the document examiner's findings that the authorising and receiving signatures were the appellant's, the denial by prison officers named on the schedules, the duty roster showing no escort duties, and the absence of the vouchers from the prison cash book and vote book. As holder of the travelling and subsistence vote, the appellant was obliged to ensure payments were properly entered and could not escape liability by claiming reliance on accounting staff.

p. 3
02

Prejudicial effect of evidence of overall over-expenditure of K.Shs. 3,290,157/65

Holding

Even excluding the excess-expenditure evidence, the corroborative evidence on the twelve counts was sufficient; its admission could not have affected the conviction.

Reasoning

The appellant complained that evidence of over-expenditure far beyond the sums charged (aggregate K.Shs. 40,299/-) overly influenced the courts below. The Court held that the conviction rested on the corroboration of the repudiated statement on the twelve counts, so even total exclusion of the excess-expenditure evidence would not have altered the outcome.

p. 4

Legal principles established

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  • A repudiated extra-judicial statement implicating a co-accused is evidence of the weakest kind, usable only to lend assurance to other evidence, and requires corroboration in material particulars to sustain a conviction.
  • On a second appeal, the Court of Appeal concerns itself only with matters of law and will affirm a conviction where the first appellate court properly found ample corroborative evidence supporting the repudiated statement.

Court orders

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  1. 1.The appellant's second appeal against conviction is dismissed

Authorities

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Legislation

  • Penal Codesection 280

Cases cited (2)

  • Anyuma s/o Omolo & Another v. R
    (1953) 20 E.A.C.A 218
  • Kinyua and Ibrahim M'Inanga v. Republic
    [1980] K.L.R. 141
On appeal from
High Court of Kenya at Nairobi
H.C.CR. Appeal Nos. 436, 444, 445, 473 & 431 of 1987
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (criminal appeal against conviction and sentence from the High Court exercising first appellate jurisdiction)

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, "PATRICK MKONJI MTAMBO vs REPUBLIC [1997] KECA 359 (KLR)", Case Analysis (1997). Criminal Appeal No. 170 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/359/eng@1997-11-07

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