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Court of AppealDismissedCriminal Appeal 78 of 2004· [2006] KECA 189 (KLR)

Joseph Odhiambo Oyienda v Republic

Court of Appeal of Kenya
23 June 2006
Philip Kiptoo TunoiP. K. TunoiPWP. N. WakiWDW. S. Deverell
1,817 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a ballistics report can be used as evidence without its maker testifying, so the theft conviction stood.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against the dismissal of the appellant's first appeal by the High Court (Gacheche J.) on his conviction for burglary and theft, arising from a break-in at police officers' houses in Kisumu during which a pistol, ammunition, a Police Certificate of Appointment and other items were stolen and later recovered from the appellant's house. As a second appeal, only matters of law were open. Counsel raised two issues: first, that the ballistic expert's report was improperly admitted under section 77 of the Evidence Act through the investigating officer without calling its maker, arguing section 33 should have applied given the appellant lacked legal representation; second, that the appellant's defence was not critically evaluated. The Court of Appeal, in a judgment of the court delivered by a bench of Tunoi, Waki and Deverell JJA, dismissed both grounds. It held that section 77 provides an independent legal basis for admitting a ballistics expert's report in criminal proceedings and is not subject to section 33, and that the law gives no preferential treatment to unrepresented accused persons. On the second ground, it found the trial court and the High Court had each expressly considered and discounted the defence of non-exclusive possession in the face of overwhelming and credible prosecution evidence, including the finding of the Police Certificate in the appellant's wallet and his ready disclosure of the pistol's location, consistent with recent possession. The appeal was dismissed in its entirety; the conviction and sentence of ten years with two strokes of the cane on each of three counts (running concurrently) stand. No costs order was recorded.

Key legal issues

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01

Admissibility of a ballistic expert's report without calling its maker

Holding

The report was properly admitted under section 77 of the Evidence Act, which permits use of a ballistics expert's report in criminal proceedings and is not subject to section 33.

Reasoning

Section 77 of the Evidence Act expressly provides that in criminal proceedings any document purporting to be a report under the hand of a ballistics expert may be used in evidence, with the court presuming genuineness of signature and office. The prosecution produced the report through the investigating officer who had possession of it, and the appellant raised no objection. Section 33 (statements of persons not available) is not a prerequisite; section 77 may be acted upon independently. Even absent the report, other incriminating evidence sustained the conviction.

p. 2
02

Evaluation of the appellant's unsworn defence

Holding

The defence (that the nephew had brought the items into the house) was sufficiently considered and discounted by both courts below given the overwhelming and credible prosecution evidence.

Reasoning

The trial court expressly analysed the unsworn statement, found the claim about the nephew's suicide 'quite convenient', and found the witnesses' evidence on recovery well corroborated. The High Court re-evaluated the same evidence, noting the appellant's quick pointing out of the pistol's location and the Certificate found in his wallet. The Court of Appeal held this amounted to sufficient consideration; the ground of appeal therefore failed.

p. 3

Legal principles established

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  • In a second appeal to the Court of Appeal, only matters of law may be raised.
  • A ballistics expert's report may be admitted in criminal proceedings under section 77 of the Evidence Act through an officer in possession of it, without calling its maker, and section 77 is not subject to section 33 of the Act.
  • The fact that an accused is unrepresented confers no preferential treatment as to the admission of evidence; an unrepresented accused's non-objection to a mode of production of a report suffices.
  • The doctrine of recent possession, established by concurrent findings of fact of the two courts below, can sustain a conviction independently of proof of a stolen item's status.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of 10 years imprisonment with two strokes of the cane on each count (to run concurrently) imposed by the trial court and upheld by the High Court stand
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 233 of 2002
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code on matters of law only (as a second appeal from the High Court's decision on first appeal)

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, "Joseph Odhiambo Oyienda v Republic", Case Analysis (2006). Criminal Appeal 78 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/189/eng@2006-06-23

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