Fanuel Makenzie Akoyo v Republic [2006] KECA 192 (KLR)

The court considered Maina & 3 others v Republic, relied on by the appellant, where hearsay evidence of an informer's tip was erroneously used to supply the mens rea of an offence under section 308(1) of the Penal Code. Here the informer's information merely prompted PW4 and PW6 to go to the appellant's house; it did not constitute any element of the charge. The fact of possession was proved by the direct testimony of the two officers, who searched the house and found the stolen jacket hidden under the mattress, and it was identified by the complainant Ambani.

The appellant contended that possession of the jacket could not be established without proving ownership of the house and that PW4's evidence needed independent corroboration. The court noted that both officers testified they knew the house as the appellant's rental, and the appellant never claimed he was not living there or that it belonged to someone else. In those circumstances formal proof of ownership was immaterial; what mattered was that the jacket was found hidden under the mattress in the house where the appellant lived, and the defence denial of the recovery was disbelieved by the trial court.

Relying on section 143 of the Evidence Act and Abdalla bin Wendo and Another v R, the court reaffirmed that a fact may be proved by the testimony of a single witness and that the categories in which corroboration is legally required are well known and do not include police evidence. Citing Kihara v Republic, it stressed that quality rather than quantity of evidence is what matters, and that whether the sole evidence of police officers suffices ultimately depends on the credibility of the police witness, a matter for the trial court which saw and heard the witnesses.

The court traced the doctrine to Andrea Obonyo v Republic, describing it as a presumption of fact rather than an implication of law, whose application depends on the circumstances of each case, including the nature of the property and the occupation of the accused. The trial magistrate had applied Thathi v Republic, where possession of stolen articles within 12 days of theft was recent; here the jacket was recovered 13 days after the robbery and the appellant offered no explanation. The superior court agreed the doctrine applied, and the second appellate court found no error in that concurrent conclusion.

As a second appeal, the court's remit was confined to matters of law. Citing Karingo v Republic it reaffirmed that concurrent findings of fact are not disturbed unless based on no evidence, and citing Republic v Oyier that findings on witness credibility may be interfered with only on well-known principles. The appellant had not demonstrated that the finding that PW4 and PW6 recovered the jacket from his house, or the inference of recent possession drawn from it, lacked evidential foundation. All grounds attacking the credibility and sufficiency of the recovery evidence therefore failed and the conviction stood.

Although no ground of appeal attacked the sentence, the court considered it on its own motion. The appellant had been sentenced to death in respect of each of three counts of robbery with violence under section 296(2) of the Penal Code, all arising from the same raid on 18th August 2003 in which three Securicor officers were robbed. The court held that a person cannot logically suffer death twice or thrice and corrected the error by setting aside the sentences in counts 2 and 3, leaving the death sentence to be suffered in count 1 only.