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Court of AppealAllowedCriminal Appeal 100 of 2007· [2008] KECA 38 (KLR)

Kennedy Otieno Odeny v Republic [2008] KECA 38 (KLR)

Court of Appeal of Kenya
28 November 2008
ROR.S.C. OmoloEGE.M. GithinjiPWP.N. Waki
1,147 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a robbery conviction because the only evidence against the accused became inadmissible when a key Evidence Act provision was repealed.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate's Court at Kisumu of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court at Kisumu (Mwera and Warsame, JJ.) was dismissed, and he appealed to the Court of Appeal at Kisumu. The prosecution case rested on identification by a single witness at night and on the recovery of stolen items (a belt, jacket and identity card) after the appellant led the police to them. Both courts below had found the identification evidence unreliable - it was night identification in difficult circumstances amounting to no more than dock identification since no identification parade was held - and convicted solely on the basis of recent possession of the recovered items. On appeal, counsel for the appellant argued that section 31 of the Evidence Act, which had made information from an accused person leading to discovery of a fact admissible, was repealed by section 102 of the Criminal Law (Amendment) Act 2003 with effect from 25th July 2003. The court accepted that the repeal was valid and that all the impugned items were recovered in consequence of the appellant's information, making that evidence inadmissible. State Counsel conceded the appeal. The court held that a conviction founded solely on inadmissible evidence is unlawful, allowed the appeal, quashed the conviction, set aside the death sentence, and ordered the appellant's immediate release unless otherwise lawfully held.

Key legal issues

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01

Admissibility of evidence of discovery of facts following information given by an accused after the repeal of section 31 of the Evidence Act

Holding

The repeal by section 102 of the Criminal Law (Amendment) Act 2003 rendered such evidence inadmissible, and a conviction resting solely on that evidence cannot stand.

Reasoning

The appellant was convicted solely on the basis of recent possession of the complainant's belt, jacket and identity card, all of which were recovered in consequence of information he gave to the police. Section 31, which had made such information admissible, was expressly repealed by section 102 of Act No. 5 of 2003 with effect from 25th July 2003, before the appellant's trial. The trial magistrate and the High Court both found the identification evidence unreliable, so no other basis for conviction survived. Counsel for the respondent conceded the appeal.

p. 3
02

Sufficiency of identification by a single witness at night without an identification parade

Holding

Such evidence was unreliable and of little value; both courts below were correct to so find, and no conviction could rest on it.

Reasoning

The robbery occurred at about 2 a.m. and identification was said to be by moonlight. There was no identification parade, so what the complainant gave was no more than dock identification. The trial magistrate expressly held the identification evidence unreliable, and the superior court said it was of very little value, convicting instead on the possession/recovery basis. This court endorsed that assessment, leaving the appeal to turn entirely on the admissibility of the discovery evidence.

p. 2

Legal principles established

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  • Following the repeal of section 31 of the Evidence Act by section 102 of the Criminal Law (Amendment) Act 2003 (No. 5 of 2003), evidence of a fact discovered in consequence of information received from an accused person is inadmissible, and a conviction based solely on such evidence is unlawful.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction for robbery with violence quashed
  3. 3.Death sentence set aside
  4. 4.Appellant to be set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Evidence Actsection 31 (repealed)
  • Criminal Law (Amendment) Act 2003, No. 5 of 2003section 102
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 248 of 2005
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal; second appeal against conviction and sentence (criminal appeal from High Court)

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, "Kennedy Otieno Odeny v Republic [2008] KECA 38 (KLR)", Case Analysis (2008). Criminal Appeal 100 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/38/eng@2008-11-28

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