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Court of AppealDismissedCriminal Appeal 107 of 2006· [2009] KECA 175 (KLR)

NICHOLAS MUKILA NDETEI v REPUBLIC [2009] KECA 175 (KLR)

Court of Appeal of Kenya
25 September 2009
2,543 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that being found with recently stolen items, without a believable explanation, is enough to convict someone of robbery.

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 Machakos on four counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death on each count. His first appeal to the High Court at Machakos (Onyancha and Lesiit, JJ.) was dismissed on 5th April 2006, with the sentence corrected so that the death sentence applied to the first count and the other death sentences were pronounced and suspended pending its execution. On the second and final appeal to the Court of Appeal at Nairobi, limited by section 361(1) of the Criminal Procedure Code to matters of law, counsel for the appellant argued that possession was not positively proved and that the charge sheet was defective. The State supported the conviction on the basis of the doctrine of recent possession. The Court of Appeal held that a second appellate court will not lightly interfere with concurrent findings of fact unless shown to be based on no evidence, citing Karingo v. Republic and Mwita v. R. Applying section 4 of the Penal Code's definition of possession, the court found the appellant was in possession of stolen items about two weeks after the robbery, had led police to where most stolen items were recovered, and had given no explanation, so the courts below could not be faulted. The appeal was dismissed in its entirety on 25th September 2009, the bench of O'Kubasu, Onyango Otieno and Visram, JJA delivering a single joint judgment.

Key legal issues

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01

Application of the doctrine of recent possession on second appeal

Holding

The conviction founded on recent possession was sound; the appellant was found about two weeks after the robbery wearing trousers identified as stolen and led police to where other stolen items were recovered, and offered no explanation.

Reasoning

Section 4 of the Penal Code defines possession to include having a thing in one's own personal possession or knowingly in the actual possession or custody of another or in any place for one's use or benefit. The appellant was found in possession of stolen items two weeks after the robbery, led police to a bush where most stolen items were recovered, and gave no explanation. Concurrent findings below were therefore not based on no evidence and could not be disturbed.

p. 4
02

Scope of a second and final appeal under section 361(1) of the Criminal Procedure Code

Holding

Only matters of law fall for consideration; concurrent findings of fact will not be disturbed unless shown to be based on no evidence.

Reasoning

The appellant came to the Court of Appeal by way of second and final appeal, so only matters of law were open under section 361(1) of the Criminal Procedure Code. Citing Karingo v. Republic and Mwita v. R, the court reaffirmed that it will not lightly interfere with concurrent findings of fact by the trial and first appellate courts unless those findings are shown to be based on no evidence.

p. 3
03

Sentencing where all counts carry a death sentence

Holding

The High Court properly corrected the trial magistrate's error by ordering the death sentence on the first count and pronouncing and suspending the other death sentences pending execution of the first; the Court of Appeal agreed with that approach.

Reasoning

The trial magistrate had erred in imposing the death sentence on all four counts. The first appellate court, following authority of the Court of Appeal, pronounced each sentence but suspended all but the first, so that if execution of the first failed or was set aside the next sentence would follow without a reference back for fresh sentencing. The Court of Appeal expressly agreed with that correction.

p. 4

Legal principles established

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  • A second appellate court will not lightly interfere with concurrent findings of fact by a trial and first appellate court unless it is shown that they were based on no evidence.
  • Under the doctrine of recent possession, an accused found in possession of recently stolen property who gives no explanation as to how he came by it may properly be convicted, possession being defined to include actual and constructive possession under section 4 of the Penal Code.

Court orders

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  1. 1.The second appeal was dismissed in its entirety
  2. 2.The conviction and the sentence as corrected by the High Court (death sentence on the first count, other death sentences pronounced and suspended pending execution of the first) were left to stand

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 4 (definition of possession)
  • Criminal Procedure Codesection 361(1)

Cases cited (2)

  • Karingo v. Republic
    [1982] KLR 213
  • Mwita v. R
    [2004] 2 KLR 60
On appeal from
High Court of Kenya at Machakos
H.C.CR.A. No. 74 of 2002
Jurisdiction invoked
Second and final appeal under section 361(1) of the Criminal Procedure Code, confined to matters of law

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, "NICHOLAS MUKILA NDETEI v REPUBLIC [2009] KECA 175 (KLR)", Case Analysis (2009). Criminal Appeal 107 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/175/eng@2009-09-25

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