Abdallah Kitengo Otieno v Republic [2011] KECA 58 (KLR)
The bottom line
#Kenya's Court of Appeal quashed both convictions against Abdallah Kitengo Otieno because evidence was lost in court custody and a key complainant never testified.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether both courts below erred in convicting the appellant on count 2 when the complainant named in that count never testified in respect of it
- 2.Whether the appellant was denied a fair trial when documentary evidence he had tendered in the abortive first trial was lost or went missing in the custody of the court and was unavailable at the resumed hearing
Key legal issues
#Conviction on a count unsupported by the complainant's testimony
The appeal on count 2 succeeds because the complainant named in that count, Carilus Akide Rakuom, testified only on count 1 and said nothing about count 2, and no report of the count 2 complaint was made to police, as confirmed by the OCS.
The charge sheet named Carilus Akide Rakuom as complainant on count 2, yet his testimony as PW2 was confined to count 1. The State Counsel conceded that count 2 ought to have been dismissed under section 202 of the Criminal Procedure Code, and the Court agreed that the concession was right on the facts and the law. Conviction on that count therefore could not stand.
Fair trial where defence evidence is lost in court custody
The appellant was denied a fair trial when documents he had tendered in the abortive first trial, together with police statements, were lost while in the custody of the court and could not be produced at the resumed hearing.
The appellant's alibi documents tendered before El-Kindy (PM) were lost by the court and were unavailable when the trial resumed before Awino (SPM). The trial court and High Court therefore decided the alibi issue without that evidence. The Court held the loss was not the appellant's fault, that the resulting prejudice was not curable under section 382 of the Criminal Procedure Code, and that it went to the essence of a fair trial.
Scope of a second appeal - confinement to issues of law
A second appeal lies only on issues of law; factual findings of the two courts below are not reviewable unless made without evidence, on a perverted appreciation of the facts, or where no reasonable tribunal could make them.
The appellant's memoranda raised 29 grounds, much of which concerned matters of fact. The Court restated the limits of a second and final appeal, holding it was not at liberty to review factual findings except where the courts below made findings without evidence or on a perverted appreciation of the facts, or where no reasonable tribunal could reach them. The Court nonetheless found an example of such an error in the treatment of the alibi on count 1.
Relevance of alibi evidence to the date of the alleged offence
The two courts below erred in law in holding that the appellant's alibi was irrelevant to count 1, since the offending words were alleged to have been uttered on 2nd February 2005, within the period covered by the alibi, even though reported on 4th March 2005.
Although the Court was generally not at liberty to revisit factual findings, it identified a finding made without evidence: both courts held the alibi did not cover the period in count 1. On the evidence, the words were allegedly uttered on 2nd February 2005 and only reported on 4th March 2005, so the alibi relating to late January to early February 2005 could not be said to be irrelevant. This error supported allowing the appeal on count 1.
Legal principles established
#- Loss of evidence tendered by an accused, where not blameable on him, such that the evidence cannot be considered at the resumed trial, infringes the tenets of a fair trial and is not a mere technicality curable under section 382 of the Criminal Procedure Code.
- A conviction cannot stand on a count where the complainant named in that count never testified in support of it, particularly where no report was made to police on that count.
Court orders
#- 1.Appeal allowed on count 2; conviction on count 2 quashed and sentence set aside
- 2.Appeal allowed on count 1; conviction on count 1 quashed and sentence set aside
- 3.Appellant to be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.CR.A. No. 140 of 1020
- Jurisdiction invoked
- Second and final appeal to the Court of Appeal on issues of law only under the Criminal Procedure Code
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.
In the result, we allow the appeal, quash the conviction on count 1 and set aside the sentence imposed on the appellant. The appellant shall be set at liberty forthwith unless he is otherwise lawfully held. It is so ordered.
It is not a mere technicality or a matter that can be said to have caused no prejudice and therefore curable under section 382 of the Criminal Procedure Code. In our view it goes to the very essence of a fair trial
Much of the material in those documents relates to matters of fact which we are not at liberty to review unless the two courts below made factual findings without any evidence or on a perverted appreciation of the facts
His testimony however was limited to count 1 and he said nothing about the allegations made in count 2.
Issues in the judgment
#The case number of the High Court appeal appears as 'H.C.CR.A. NO. 140 OF 1020', an apparently erroneous year (1020 instead of a plausible year such as 2010).
The judgment recites the appellant's denial as referring to an utterance on '2nd February, 2004' whereas the charge and the Court's own analysis place the first alleged utterance on 2nd February, 2005 - an internal inconsistency in the dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdallah Kitengo Otieno v Republic [2011] KECA 58 (KLR)", Case Analysis (2011). Criminal Appeal No. 36 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/58/eng@2011-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.