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Court of AppealPartially AllowedCriminal Appeal No. 23 of 1998· [1998] KECA 56 (KLR)

Stephen Twanze & another v Republic [1998] KECA 56 (KLR)

Court of Appeal
15 July 1998
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiEOE. Owuor
916 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld one robbery conviction based on possession of stolen goods, but freed a co-accused convicted only on fellow suspects' accusations.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Mombasa (Kwach, Tunoi and Owuor JJA) against convictions for robbery with violence contrary to section 296(2) of the Penal Code arising from a robbery at Nyali Estate, Mombasa on 11th September 1994, in which the complainant Cyril Ondatto was robbed of various household goods and cash and seriously wounded. The trial magistrate convicted the two appellants and a third accused, sentencing all to death; the first appeal before Ang'awa and Waki JJ allowed only the third accused's appeal. The Court of Appeal delivered a single judgment of the court. The first appellant, Stephen Twanze, complained that he was not positively identified as a participant in the robbery. The court held that the radio he attempted to sell to Pius Watila belonged to the complainant and had been stolen in the robbery; being in recent possession of an item recently stolen, the presumption arose that he was either the thief or a handler unless he explained how he came by it. He was also positively identified by the complainant's son at a police station. His appeal was dismissed. As for Samuel Nzioka, the second appellant, the only evidence against him was the incriminating evidence of two co-accused; the court allowed his appeal, quashed the conviction, set aside the sentence and ordered his release forthwith unless otherwise lawfully held. The appeal was therefore partially allowed. No costs order was made and no authorities were cited.

Key legal issues

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01

Recent possession of stolen property as basis for conviction

Holding

The first appellant's conviction was properly founded on the presumption arising from recent possession of the complainant's stolen radio, coupled with his positive identification at a police station

Reasoning

The radio the first appellant tried to sell to Pius belonged to the complainant and was stolen during the robbery. Being in recent possession of an item recently stolen, the presumption arose that he was either the thief or a handler unless he explained how he came by it. His explanation (recovering a debt) did not displace the presumption, and he was additionally positively identified by the complainant's son at a police station.

p. 2
02

Sufficiency of co-accused evidence against the second appellant

Holding

The second appellant's conviction could not stand as the only evidence against him was the incriminating evidence of two co-accused; his appeal was allowed and conviction quashed

Reasoning

Apart from the evidence of the two co-accused incriminating the second appellant, there was no other evidence connecting him with the crime. The Court of Appeal expressed surprise that the High Court had dismissed his first appeal and quashed the conviction, set aside the sentence and ordered his release.

p. 2

Legal principles established

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  • A person found in recent possession of stolen property is presumed to be either the thief or a handler of stolen property unless he offers an explanation as to how the item came into his possession
  • On a second appeal, where the only evidence against an accused is the incriminating evidence of co-accused, the conviction cannot stand

Court orders

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  1. 1.Dismissal of the first appellant's (Stephen Twanze's) appeal
  2. 2.Allowance of the second appellant's (Samuel Nzioka's) appeal
  3. 3.Quashing of the second appellant's conviction
  4. 4.Setting aside of the second appellant's sentence
  5. 5.Order that the second appellant be set at liberty forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 296(2)
On appeal from
High Court of Kenya at Mombasa
H.C.Cr.A No. 33 and 378 of 1996
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (criminal appeal from a decision of 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, "Stephen Twanze & another v Republic [1998] KECA 56 (KLR)", Case Analysis (1998). Criminal Appeal No. 23 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/56/eng@1998-07-15

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