Daniel Kabiru Thiong’o v Republic [2004] KECA 165 (KLR)

The Court invoked section 361(1) of the Criminal Procedure Code confining second appeals to matters of law. Counsel's complaints about the weight of evidence, the unproduced keys and the plausibility of the appellant's conduct were attacks on findings of fact made concurrently by the trial court and the High Court. Relying on Stephen Muriungi and Nyambane v Republic, the Court held that an appellate court confined to questions of law must accept such findings and interfere only where, on the evidence, no reasonable tribunal could have reached the conclusion, rendering the decision bad in law. None of the complained-of matters made the findings perverse.

Relying on the East African Court of Appeal's decision in Tuwamoi v Uganda, the Court held that the requirement of corroboration of a retracted or repudiated confession is a rule of prudence or practice rather than a rule of law. The applicable standard is that the trial court must be fully satisfied, in all the circumstances of the case, that the confession is true before founding a conviction on it. Corroboration in some material particular by independent evidence is usual but not necessary in law; a court may act on a confession alone if, after considering all the material points and surrounding circumstances, it is satisfied the confession cannot but be true.

The conviction was not founded exclusively on the confession. The Court enumerated the incriminating circumstances: the appellant owned the Peugeot identified by PW1 and PW2 as the robbery vehicle; the vehicle was found near the scene at Misha; he called a taxi from Gatitu petrol station near the scene at 11.30 pm; he reported at Karatina a fabricated car-jacking near Sagana and dumping at Baricho; and his car keys were found on him. These findings, though made without identification of the appellant during the robbery, were irreconcilable with innocence and excluded every reasonable hypothesis other than guilt, meeting the Kipkering Arap Koske test.

The Court rejected the submission that reliance on unrecovered car keys shifted the evidential burden. It held the findings were open on the record and did not depend on the keys; the appellant's conduct in reporting a false car-jacking by taxi was that of a smooth liar who had taken precautions but fell short of perfection, not perversity-inducing folly. The alleged inconsistency over the Peugeot's tampered registration plates was likewise a matter of fact resolved by the two courts below and disclosed no question of law compelling interference on second appeal.

The appellant's cautionary statement, held admissible after a trial within the trial and retracted at the hearing, was written in his own hand and described the planning, the trailing and blocking of the canter, the execution of the robbery, the trip to Gatitu petrol station, the taxi ride to Karatina police station and the false report made there. Each material admission matched the evidence of six prosecution witnesses. Given that corroboration, and the confession's detail, the Court found it manifest that it could not but be true and that it was safe to rely on it.