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Court of AppealDismissedCriminal Appeal 63, 64, 65, 66 & 67 of 2003· [2006] KECA 363 (KLR)

Grace Mokeira Omariba & 4 Others v Republic

Court of Appeal of Kenya
29 September 2006
3,218 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that courts can believe part of an accused person's story and reject the rest, and dismissed all five robbery appeals.

What this practically means

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Executive summary

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Five appellants, convicted by the Principal Magistrate at Nakuru of two counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to the mandatory death sentence, brought consolidated second appeals after the High Court dismissed their first appeals. The robbery occurred at Kisanana Trading Centre on the night of 17th/18th July 1994, during which Kiptoo was stabbed and robbed of Shs.40,000 and a weighing machine and stones were stolen from a shop. The 1st appellant, an employee at the premises, was identified by torchlight at the scene and arrested with four torches; the others were pursued and arrested, some with weapons, uniforms and the stolen items. Each made extra-judicial statements later repudiated but admitted after trials within trials. The 1st appellant testified that she was hijacked, beaten and raped, exonerating herself; the others raised alibis. The Court of Appeal held that a confession or an accused's testimony need not be believed as a whole, following Were v Uganda; that the Judges' Rules are rules of practice and voluntariness was a concurrent finding of fact it would not disturb; that a retracted confession may be acted on alone if the court is fully satisfied of its truth (Tuwamoi); and that the 1st appellant's self-exculpatory testimony was nonetheless a confession under section 32(2) of the Evidence Act and, treated as accomplice evidence, corroborated the co-appellants' confessions. The age complaint was rejected as unraised below and unsubstantiated. All five appeals were dismissed.

Key legal issues

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01

Partial acceptance of an accused's testimony

Holding

The superior court was entitled to believe part of the 1st appellant's testimony and reject the hijacking/rape portion as self-serving

Reasoning

Applying Were v Uganda, the court held the dictum on confessions applies equally to testimony in court. The rejected portion did not render the accepted portion something different; the accepted part corresponded substantially with prosecution evidence.

p. 4
02

Admissibility and weight of repudiated confessions

Holding

Judges' Rules are rules of practice only; voluntariness is a question of fact with concurrent findings; repudiated confessions were properly admitted after trials within trials and acted upon with caution

Reasoning

Citing Anyangu and Tuwamoi, the court found concurrent findings of voluntariness it would not disturb, and that the superior court duly cautioned itself before acting on the confessions, which were corroborated by the 1st appellant's testimony and recovered exhibits.

p. 5
03

Status of the 1st appellant's in-court testimony

Holding

Her testimony, though containing self-exculpatory matter, was itself a confession under section 32(2) of the Evidence Act and substantial evidence against her co-appellants

Reasoning

She admitted substantially all the facts constituting the robbery; per Gopa, self-exculpatory matter does not negative a confession. Her testimony carried more weight than a retracted extra-judicial confession and, with the co-appellants' confessions, left no doubt they were in the gang.

p. 6
04

Interference with concurrent findings of fact

Holding

Second appellate court will not interfere with concurrent findings of fact based on sound evidence

Reasoning

Both courts below made concurrent findings that the 1st appellant participated in the robbery and that the confessions were voluntary; the Court of Appeal found no basis for interference, consistent with its limited second-appeal role.

p. 4

Legal principles established

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  • A confession or the testimony of an accused need not be believed or disbelieved as a whole; a court may accept part and reject another part unless the parts are inextricably interwoven
  • A court may act on a retracted confession alone if fully satisfied after considering all material points and surrounding circumstances that it cannot but be true
  • A statement containing self-exculpatory matter can still be a confession if that matter does not negative the offence alleged
  • Confessions of co-accused may be taken into consideration against each other under section 32(1) of the Evidence Act, but constitute accomplice evidence of the weakest kind
  • A conviction based on uncorroborated accomplice evidence is not illegal under section 141 of the Evidence Act

Court orders

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  1. 1.Dismissal of all five appeals

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Evidence Actsection 32(1)
  • Evidence Actsection 32(2)
  • Evidence Actsection 141
  • Judges' Rulesnull

Cases cited (5)

  • WERE V. UGANDA
    [1964] E.A. 596

    A confession or statement need not be believed as a whole; part may be accepted and part rejected unless inextricably interwoven

  • ANYANGU V. REPUBLIC
    [1968] E.A. 239

    Judges' Rules are rules of practice; trial judge has discretion to admit statements not strictly compliant; accomplice evidence is of the weakest kind

  • TUWAMOI V. UGANDA
    [1967] E.A. 84

    Legal status of retracted/repudiated confessions; court may act on a confession alone if fully satisfied it is true

  • KOMORA V. REPUBLIC
    [1983] KLR 583

    Supporting the Tuwamoi principle on retracted confessions

  • GOPA S/O GIDAMEBANYA & OTHERS V. R.
    (1953) 20 EACA 318

    A statement with self-exculpatory matter can still be a confession if that matter does not negative the offence

On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. Nos. 118, 177, 179, 180 & 181 of 1997
Jurisdiction invoked
Second appellate jurisdiction under the Criminal Procedure Code over appeals from the High Court on appeal from the Principal Magistrate

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, "Grace Mokeira Omariba & 4 Others v Republic", Case Analysis (2006). Criminal Appeal 63, 64, 65, 66 & 67 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/363/eng@2006-09-29

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