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Court of AppealDismissedCriminal Appeal 139 of 2008

Samson Njeru Kareko & 4 others v Republic [2010] KECA 207 (KLR)

Court of Appeal of Kenya
25 June 2010
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld robbery convictions, confirming that possession of stolen goods within hours of a robbery, even jointly or through others, is enough to convict.

What this practically means

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Executive summary

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The five appellants were convicted by the Senior Principal Magistrate's Court at Embu of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. Their first appeals to the High Court at Embu (Khamoni and Okwengu, JJ.) were dismissed, and they appealed to the Court of Appeal at Nyeri. The 2nd appellant escaped from custody and his appeal stood abated under rule 70(7) of the Court of Appeal Rules. The judgment records two robberies at the complainant's home in July 2000, with a motor vehicle and household goods stolen and substantial recoveries made from the 3rd and 4th appellants on the same day. Counsel for the appellants challenged reliance on inconclusive recovery evidence, accomplice evidence, and retracted confessions, and faulted the superior court for failing to re-evaluate the evidence. The Court of Appeal declined to interfere with the concurrent findings of fact, holding that the recent possession doctrine was correctly applied to goods recovered within hours of the robbery. It upheld the conviction of the 1st and 5th appellants on the basis of joint possession: although not found in physical possession, their conduct in leading police to the recoveries justified the inference that all were jointly in possession. While endorsing the superior court's non-reliance on the repudiated confession, the court held that the superior court misdirected itself in finding the confession improperly admitted - the objections raised went to weight, not admissibility - and the statement was amply corroborated and could be considered under sections 31 and 32(1) of the Evidence Act. All remaining appeals were dismissed. No costs order was recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal should interfere with the concurrent findings of fact by the two courts below that stolen goods were recovered from the 3rd and 4th appellants
  2. 2.Whether the 1st and 5th appellants, not found in physical possession of stolen goods, could be deemed in joint possession of the stolen goods
  3. 3.Whether the superior court erred in relying on the doctrine of recent possession
  4. 4.Whether the superior court wrongly relied on the 1st appellant's repudiated confession
  5. 5.Whether the superior court properly held that the confessionary statement was improperly admitted, and what the correct treatment of a repudiated but admitted confession is

Key legal issues

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01

Concurrent findings of fact on recovery of stolen goods

Holding

The Court of Appeal declined to disturb the concurrent findings that a foot pump was recovered from the 4th appellant and a large quantity of stolen goods from the 3rd appellant, as there was evidence supporting them.

Reasoning

The trial Magistrate believed the evidence of Pc. Muli and Pc. Mogambi on the recoveries, and the superior court likewise believed it. The complainant identified the recovered goods as his. On a second appeal the court will not interfere with concurrent findings of fact supported by evidence; no grounds for interference were shown.

p. 2
02

Joint/constructive possession by the 1st and 5th appellants

Holding

Although the 1st and 5th appellants were not found in physical possession of stolen goods, their conduct in leading police to the 3rd and 4th appellants from whom goods were recovered justified an inference of knowledge, making all of them jointly in possession in law.

Reasoning

The superior court correctly inferred from their conduct that the 1st and 5th appellants knew of the possession of stolen goods by the 3rd and 4th appellants. Section 4 of the Penal Code deems a person who knowingly has goods in the actual possession or custody of another, or for his use or benefit, to be in possession. The concurrent finding that they led police to the recovery was likewise not disturbed.

p. 2
03

Doctrine of recent possession

Holding

Possession of the stolen goods within hours of the robbery correctly supported the invocation of the doctrine of recent possession to sustain the robbery-with-violence convictions.

Reasoning

The goods were recovered on the same day as the robbery, within hours, and identified by the complainant. The two courts below correctly applied the doctrine, and the second appellate court found no basis to disturb that application. The submission that the 3rd appellant should instead have been convicted of handling stolen property did not prevail.

p. 2
04

Repudiated confession and its admissibility

Holding

The superior court did not rely on the repudiated confession, so the appeal failed on that ground; however, the superior court erred in holding the confession improperly admitted, as the cited objections went to weight, not admissibility.

Reasoning

The statement was admitted after a trial-within-trial with circumspection, evidenced by the magistrate's rejection of two other cautionary statements for procedural defects. Objections about reasons and co-accused cross-examination went to weight. The statement was amply corroborated by the conduct of the 1st and 5th appellants and the recoveries, and under section 32(1) of the Evidence Act could be taken into consideration against co-accused.

p. 2

Legal principles established

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  • A second appellate court will not interfere with concurrent findings of fact by the two courts below unless there are grounds warranting interference
  • A person not in personal possession of stolen goods is nonetheless deemed in possession where he knowingly has the goods in the actual possession or custody of another, or for his use or benefit or that of another, under the definition of possession in section 4 of the Penal Code
  • Under section 31 of the Evidence Act (as then operative), information received from an accused that leads to the discovery of a fact may be proved, whether or not it amounts to a confession
  • Objections such as failure by the trial magistrate to give reasons for admitting a statement, or failure to allow co-accused cross-examination, go to the weight of a confession rather than its admissibility
  • A repudiated confession admitted after a trial-within-trial may be acted upon where amply corroborated, and under section 32(1) of the Evidence Act a confession implicating co-accused may be taken into consideration
  • Possession of stolen goods within hours of a robbery engages the doctrine of recent possession

Court orders

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  1. 1.The appeals of the 1st, 3rd, 4th and 5th appellants are dismissed
  2. 2.The 2nd appellant's appeal stands marked as abated under rule 70(7) of the Court of Appeal Rules

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Embu
H.C.Cr.A. Nos. 85, 86, 87, 88 & 89 of 2001
Jurisdiction invoked
Second appeal to the Court of Appeal under the Court of Appeal Rules; appeal against the first appellate court's judgment (Appeal from a judgment of the High Court of Kenya at Embu)
Consolidated with
H.C.Cr.A. Nos. 85, 86, 87, 88 & 89 of 2001 (consolidated first appeals in the High Court); this second appeal heard as one

Relief refused

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Convictions of the 1st, 3rd, 4th and 5th appellants set aside / acquittal

Convictions were founded on sound evidence: concurrent findings of fact on recent possession and joint possession were supported by evidence, and the confession issue did not vitiate the outcome

p. 3

Interference with concurrent findings of fact of the two courts below

There was evidence to support the concurrent findings and no grounds warranting interference

p. 2

Costs

No order as to costs is recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly the appeals are dismissed.
p. 3Final orders / disposition
There are no grounds warranting our interference with the concurrent findings of fact.
p. 2Second appeal - concurrent findings of fact
The appellants were in possession of the stolen goods within hours after the robbery and the two courts below correctly invoked the doctrine of recent possession.
p. 2Doctrine of recent possession
The superior court made a correct inference from the conduct of the 1st and 5th appellants that all the appellants were in joint possession of the stolen goods.
p. 2Joint possession
do not, with respect, go to the admissibility of the statement but rather to the weight to be given to the statement.
p. 3Admissibility versus weight of a repudiated confession
The repudiated statement was amply corroborated by the conduct of the 1st and 5th appellants of leading to the recovery of goods and by the evidence of recovery of goods.
p. 3Corroboration of retracted confession
when a fact is deposed to as discovered in consequence of information received from a person accused of any offence so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.
p. 2Section 31 Evidence Act - discovery pursuant to accused's information

Issues in the judgment

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minor

Internal date contradiction: the confession by the 1st appellant is stated to have been made on 21st July, 2010, which is impossible as the trial predates the appeal decided in 2010; the judgment elsewhere places the events in July 2000, so 2010 appears to be a typographical error for 2000.

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, "Samson Njeru Kareko & 4 others v Republic [2010] KECA 207 (KLR)", Case Analysis (2010). Criminal Appeal 139 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/207/eng@2010-06-25

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