Jackson Ekal & 3 others v Republic [2010] KECA 254 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that second appeals only address legal errors, and people caught together carrying stolen goods are all deemed in joint possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a second appellate court may interfere with concurrent findings of fact of the two courts below
- 2.Whether the appellants were properly convicted on the doctrine of recent possession notwithstanding that the recovered goods were not earmarked for each appellant
- 3.Whether the Court has power to interfere with sentence in a second appeal
Key legal issues
#Scope of a second appeal
A second appeal is confined to points of law only; the court must accept concurrent findings of fact of the lower courts.
Relying on M'Riunga vs Republic, the court held that where the right of appeal is confined to questions of law, the second appellate court is bound by concurrent factual findings unless it is apparent that no reasonable tribunal could have reached that conclusion on the evidence. The circumstances of the appellants' arrest and whether they carried paper bags containing stolen goods were factual matters, so the court could not revisit them.
Joint possession under the doctrine of recent possession
The fact that stolen goods were mixed up and not earmarked per appellant did not vitiate conviction; persons carrying goods stolen in the same robbery are deemed in joint possession under Section 4 of the Penal Code.
Although the police did not earmark the goods found with each appellant and all goods were put in one paper bag and produced as one exhibit, the shopkeepers identified the goods as stolen from their shops. Because the appellants were walking together each carrying a paper bag with goods stolen from the same trading centre by the same gang, they were in law deemed to be in joint possession of the stolen goods, sustaining conviction on the doctrine of recent possession.
Power to interfere with sentence in a second appeal
Where the sentence is lawful, severity is a matter of fact and the Court has no power to reduce it in a second appeal.
The 3rd appellant abandoned his appeal against conviction but sought reduction of sentence. The court held the sentence of eight years imprisonment per count was legal and, since a second appeal is confined to points of law under the Criminal Procedure Code, severity of sentence being a matter of fact could not ground interference. His plea for sentence reduction was accordingly refused.
Legal principles established
#- In a second appeal confined to questions of law, the Court of Appeal must accept the concurrent findings of fact of the lower courts and will not interfere unless no reasonable tribunal could have reached that conclusion on the evidence.
- Where persons are found walking together each carrying part of stolen goods taken in the same robbery, they are deemed in joint possession of all the stolen goods under Section 4 of the Penal Code.
- A second appellate court has no power to interfere with a legal sentence on the ground of severity.
Court orders
#- 1.Appeal of the 3rd appellant against conviction recorded as abandoned
- 2.Application for reduction of sentence by the 3rd appellant refused
- 3.Appeal of each appellant against conviction and sentence dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A. Nos. 222 – 226 of 2004
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code - second appeal confined to matters of law only
Relief refused
#Reduction of sentence by the 3rd appellant
Severity of sentence is a matter of fact and a second appeal is confined to points of law only
Appeal against conviction by the 1st, 2nd and 4th appellants
Concurrent findings of fact were supported by evidence and a second appeal is confined to questions of law
Costs
No order as to costs was made; this is a criminal appeal by the State.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower courts and resist the temptation to treat findings of fact as holdings of law and should not interfere with the decision unless it is apparent that on the evidence no reasonable tribunal could have reached that conclusion – in other words, that the decision is bad in law.
The appellants were walking together each carrying a paper bag containing goods stolen in the same trading centre by a gang of robbers. In law, they were deemed to be in joint possession of the stolen goods
For the foregoing reasons, we are satisfied that the 1st, 2nd and 4th appellant including the 3rd appellant were properly convicted. In the result, we dismiss the appeal of each appellant.
Issues in the judgment
#The judgment cites Section (1)(a) of the Criminal Procedure Code without a section number, and the appellants' names appear with variant spellings (e.g. 'John Emosil Nachaboli' in the title versus 'John Emosil Nachoboli' in the body; 'Peterson Longilai' versus 'Peterson Logilai').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Ekal & 3 others v Republic [2010] KECA 254 (KLR)", Case Analysis (2010). Criminal Appeal 216 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/254/eng@2010-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.