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Court of AppealDismissedCriminal Appeal 2 of 2004

DANIEL MULI v REPUBLIC (Criminal Appeal 2 of 2004) [2007] KECA 246 (KLR)

Court of Appeal of Kenya
27 July 2007
SBS.E.O. BosireJOJ.W. Onyango OtienoWDW.S. Deverell
1,742 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that being found with stolen goods can convict you of robbery unless you explain how you got them.

What this practically means

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Executive summary

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The appellant, Daniel Muli, was convicted after trial of robbery with violence contrary to section 296(2) of the Penal Code, arising from a robbery on 8th June 1994 at Kipkabus Road, Ngara, in which Rajal Sojpal Punja Shah, a housewife, was strangled and robbed of Kshs.80,000 and household items. The trial magistrate sentenced him to death. His first appeal to the High Court (Mbogholi Msagah & Mutitu JJ.) was dismissed on 15th August 2003, and he appealed to the Court of Appeal (Bosire, Onyango Otieno and Deverell JJA) raising two main grounds: that his identification as Sojpal's employee lacked corroboration, and that the doctrine of recent possession was improperly invoked without corroborative evidence of recovery. A preliminary objection to the charge, alleging that the wrong person was named as complainant, also failed. The Court of Appeal held that Sojpal's firm and unshaken testimony that he personally employed the appellant for two months needed no corroboration, and that it would be preposterous to find he did not know his own employee. On recent possession, the assortment of items recovered from the appellant's Kitui home and positively identified by Sojpal raised, under section 119 of the Evidence Act, a rebuttable presumption that the appellant was either the thief or a guilty receiver, which he failed to rebut. The court further held that section 143 of the Evidence Act requires no particular number of witnesses, that the arresting officer's testimony needed no corroboration, and that the statutory duty under section 111 to explain facts within an accused's knowledge was not an improper shifting of the burden of proof. Concurrent findings of the two courts below were not disturbed and the second appeal was dismissed in its entirety, with the conviction and death sentence effectively left standing.

Key legal issues

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01

Whether the charge was defective for naming the wrong complainant

Holding

The court held the complaint had no basis because the person named in the charge sheet (the deceased, Rajal Sojpal Punja Shah) was in fact the victim who was robbed and against whom violence was applied; the first prosecution witness was her husband, correctly described in the judgment.

Reasoning

The post mortem report produced as exhibit 14 named the deceased, Rajal Sojpal Punja Shah, a housewife, as the victim of the robbery and the violence. The first prosecution witness was Sojpal Punja Shah, the husband, who was also named. Since the victim was named in the charge sheet, the objection that a non-victim was named as complainant failed.

p. 1
02

Whether identification of the appellant as Sojpal's employee required corroboration

Holding

No corroboration was required; the witness remained firm under cross-examination that he personally employed the appellant who had worked for him for two months, and both courts below were entitled to accept that evidence.

Reasoning

Sojpal testified and remained firm that he personally employed the appellant, who had worked for him for two months before the robbery. It would be preposterous to hold that a witness would fail to know a person he had employed and lived with for two months. The son, Mansuttal, lived away from his parents' home and could not be expected to know the appellant, so his ignorance of the appellant did not create a gap in the evidence.

p. 2
03

Whether the doctrine of recent possession was properly invoked

Holding

The doctrine applied. Several items identified by Sojpal as his were recovered from the appellant's house; their number and nature, and the time of recovery, made the possession recent, raising a rebuttable presumption that the appellant was either the thief or a guilty receiver, which he did not rebut.

Reasoning

The police officer, led to the appellant's Kitui home, recovered an assortment of items including a bed sheet, pocket watch, shirts, cassette tape and plastic tablecloth, all positively identified by Sojpal as his stolen property. The recovery about four months after the theft was held to be recent possession, bridging any missing link in the circumstantial chain, and the appellant offered no explanation for possession of the items.

p. 3
04

Whether the trial magistrate shifted the burden of proof to the appellant

Holding

She did not. The law places a duty on an accused to explain certain facts, and the appellant's unexplained disappearance from his place of work immediately after the robbery was a matter he alone could explain.

Reasoning

The court held that the burden placed on the appellant was the statutory duty under section 111 of the Evidence Act to explain facts especially within his knowledge. His conduct in disappearing from Sojpal's home soon after the robbery, and his denial of employment rather than offering an explanation, meant the magistrate's approach did not amount to an improper shift of the burden of proof.

p. 3
05

Whether the evidence of the arresting officer needed corroboration

Holding

It did not. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact, and the finding on recovery turned on witness credibility, with concurrent findings by both courts below that the Court of Appeal would not disturb.

Reasoning

Counsel for the appellant argued the arresting officer's evidence on recovery was vague and needed corroboration. The court, accepting the State's submission, relied on section 143 of the Evidence Act, which abolishes any rule requiring a particular number of witnesses. Since the trial and first appellate courts made concurrent credibility findings on the recovery, the second appellate court found no proper basis for interference.

p. 3

Legal principles established

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  • Recent possession of stolen property, where the possession is of recently stolen items identified by the owner, raises a rebuttable presumption that the possessor is either the thief or a guilty receiver, and the accused is duty bound to explain the possession.
  • Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact, so testimony of a single credible witness on recovery need not be corroborated.
  • An accused who fails to offer an explanation for facts peculiarly within his knowledge, such as his conduct and possession of stolen items, bears the burden under section 111 of the Evidence Act.

Court orders

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  1. 1.The appeal against conviction for robbery with violence is dismissed
  2. 2.Order accordingly
On appeal from
High Court of Kenya
H.C.CR.A. No. 612 of 1995
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal against the judgment of the High Court in H.C.CR.A. No. 612 of 1995)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DANIEL MULI v REPUBLIC (Criminal Appeal 2 of 2004) [2007] KECA 246 (KLR)", Case Analysis (2007). Criminal Appeal 2 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/246/eng@2007-07-27

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