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Court of AppealDismissedCriminal Appeal No. 276 of 2009· [2013] KECA 64 (KLR)

Kennedy Wesonga Kwoba v Republic [2013] KECA 64 (KLR)

Court of Appeal of Kenya
20 December 2013
WKW. KaranjaDavid Kenani MaragaD.K. MaragaPhilomena Mbete MwiluP.M. Mwilu
1,992 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a robbery conviction based on stolen property found with the accused, even where eyewitness identification evidence was unreliable.

What this practically means

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Executive summary

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This was a second appeal by Kennedy Wesonga Kwoba against his conviction for robbery with violence contrary to Section 296(2) of the Penal Code and death sentence, after the High Court at Bungoma (Mbogholimsagha & Ochieng, JJ.) dismissed his first appeal. The appellant raised three grounds: contradictory and unreliable visual identification by the two young men in the complainant's shop; improper reliance on the doctrine of recent possession; and the High Court's poor re-evaluation of the evidence. The prosecution case was that a video deck was stolen from the complainant's shop during a robbery and that about five days later the appellant was arrested while trying to sell it at Koyonzo Market. Counsel for the appellant relied on the Nyaga decision on the dangers of visual identification, and noted the witnesses never gave the appellant's name or description to the police. The State countered that there was electric lighting enabling identification, and that the appellant's flight from police, failure to claim ownership, and the complainant's receipt for the video deck proved recent possession. The Court, in a single judgment of the whole court (Karanja, Maraga & Mwilu, JJ.A), held that although the witnesses had not given the appellant's name to police, they gave it to the complainant and knew him previously, so identification was positive; but ultimately the court discounted the identification evidence and rested the conviction squarely on the doctrine of recent possession, whose conditions precedent it restated from Isaac Nganga Kahiga and found satisfied. The appellant's flight was treated as relevant conduct under Section 8(2) of the Evidence Act evidencing consciousness of guilt. The death sentence was held lawful. The appeal was dismissed in its entirety and the decisions of the two courts below were affirmed.

Key legal issues

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01

Reliability of visual identification evidence

Holding

Although the eye witnesses did not give the appellant's description or name to the police, they gave his name to the complainant PW1 and testified they had known him before and identified him before the electric light was switched off; the identification was positive.

Reasoning

The court acknowledged the umpteen reiterations that visual identification evidence must be handled carefully and that failure to give a description to police is important. However, the witnesses gave the name to PW1, the police appeared to be looking for a known suspect at the time of arrest, and the witnesses were categorical they knew and recognized the appellant before the light went off. Identification was therefore safely established on recognition.

p. 3
02

Application of the doctrine of recent possession

Holding

All conditions precedent for recent possession were satisfied: the video deck was found with the appellant, was positively identified as PW1's property (supported by a receipt), and had been recently stolen.

Reasoning

PW3 testified the appellant offered to sell the video deck days after the robbery; the appellant ran away on seeing the complainant with police, was chased and arrested, and made no claim of ownership; PW1 produced a receipt proving ownership. The court adopted the four conditions from Isaac Nganga Kahiga and found each satisfied, making the conviction sound even though the identification evidence was discounted.

p. 3
03

Relevance of flight/conduct as consciousness of guilt

Holding

The appellant's conduct of running away on seeing police officers approach was not that of an innocent man and was evidence from which guilt could be inferred, consistent with Section 8(2) of the Evidence Act.

Reasoning

Drawing on Alberty v US and Quinlan v R, the court held that flight is a silent admission by a defendant unwilling or unable to face the case against him, and that under Section 8(2) of the Evidence Act conduct influencing or influenced by a fact in issue is relevant whether previous or subsequent. The appellant's flight while selling the stolen video deck supported an inference of guilt.

p. 3

Legal principles established

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  • Before a conviction may rest on the doctrine of recent possession, the prosecution must positively prove that the property was found with the suspect, that it is positively the complainant's property, and that it was recently stolen from the complainant.
  • Giving the name or description of perpetrators to the police or person in authority at the time of reporting a crime is of crucial importance, as it confirms the witness' consistency at trial.
  • Unless the evidence of visual identification is handled with care, it can cause a miscarriage of justice.
  • Flight from police, if unexplained, is relevant evidence from which guilt may be inferred as consciousness of guilt.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction based on the doctrine of recent possession upheld
  3. 3.Death sentence held lawful (noting it had since been commuted)

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 322(2)
  • Registration of Persons Act Cap 107Section 14(1)
  • Evidence ActSection 8(2)

Cases cited (7)

  • Kelvin Kimathi Nyaga & Others v. Republic, Nyeri Court of Appeal Criminal Appeal Nos. 109 & 116 of 2012 (Consolidated)
    unreported
  • Tekerali & Others Vs Republic
    (1952) 19 EACA 259
  • David Masinde & Another vs Republic, Criminal Appeals Nos. 33 & 34 of 2004 (consolidated)
  • R v Kabogo s/o Wagunyu
    23 (1) KLR 50
  • Isaac Nganga Kahiga Vs Republic, Criminal Appeal No. 272 of 2005
  • Alberty v. US
    162 US 499 (1896)
  • Quinlan v. R
    [2006] NWSCCA 284
On appeal from
High Court of Kenya at Bungoma
H.C.CR.A No. 151 of 2003
Jurisdiction invoked
Second appeal to the Court of Appeal in a criminal matter (criminal appeal as of right on a second appeal)

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 Wesonga Kwoba v Republic [2013] KECA 64 (KLR)", Case Analysis (2013). Criminal Appeal No. 276 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/64/eng@2013-12-20

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