Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 292 of 2012

David Munyao Mulela & another v Republic [2013] KECA 71 (KLR)

Court of Appeal
20 December 2013
1,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that drivers in exclusive control of a vehicle carrying hidden drugs must explain how they got there, or face conviction.

What this practically means

#

Executive summary

#
This is a second appeal to the Court of Appeal at Kisumu by David Munyao Mulela and Soul Kimenyi against their conviction for trafficking in narcotic drugs and their sentences (a fine of Kshs. 1,000,000 each in default 12 months imprisonment, plus six years imprisonment each). They were convicted by the Senior Resident Magistrate at Kisii in Criminal Case No. 1795 of 2010 after a sack of cannabis sativa weighing 32 kilograms was found concealed under the chassis of the trailer of the lorry they drove, secured with planks and ropes. Their first appeal to the High Court at Kisii (Sitati J) was dismissed on 13th October 2011. The Court of Appeal, coram Onyango Otieno, Azangalala and ole Kantai JJ.A, held that as a second appeal its jurisdiction was limited by Section 361(1)(a) of the Criminal Procedure Code to issues of law, applying Thiongo v R. Counsel for the appellants relied on a supplementary memorandum arguing absence of common intention, that control of a vehicle did not amount to possession, and that the sentence was harsh. The court held that the appellants had exclusive and uninterrupted control of the trailer, which had been certified empty at the border, and that under Section 111 of the Evidence Act they bore the burden of explaining how the cannabis came to be concealed under it; the first appellant offered no explanation and the second remained silent. The complaint on severity of sentence was rejected as a matter of fact outside second-appeal jurisdiction. The appeal was dismissed on 20th December 2013.

Questions the Court framed

#

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

  1. 1.Whether the Court of Appeal on second appeal can entertain issues of fact; what issues of law arise from the memorandum of appeal
  2. 2.Whether the common intention of the appellants to traffic in cannabis was proved
  3. 3.Whether being in control of a motor vehicle amounts to possession or conveying of narcotics
  4. 4.Whether the burden lay on the appellants to explain how the drugs came to be concealed under the trailer
  5. 5.Whether the sentence imposed was harsh or otherwise open to challenge on second appeal

Key legal issues

#
01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

The jurisdiction is confined to issues of law; concurrent findings of fact by the two courts below bind the court unless shown not to be based on evidence.

Reasoning

Relying on Section 361(1)(a) Criminal Procedure Code and the Thiongo v R authority, the court held that its task is to examine the record and memorandum of appeal to identify only issues of law. Complaints about the evaluation of evidence and the severity of sentence are factual matters outside its remit and must be rejected.

p. 2
02

Whether the prosecution proved possession or conveying of the cannabis by the appellants

Holding

Yes - exclusive control of the trailer together with the failure to explain the concealed consignment sustained the conviction.

Reasoning

The trailer was in the sole control of the appellants as driver and conductor; it had been inspected and certified empty at the border; the sack was deliberately secured with planks and ropes where it could not have been placed by a third party without access. The first appellant gave no explanation and the second remained silent, so the statutory burden under Section 111 of the Evidence Act was not discharged.

p. 4
03

Allocation of the burden of proof regarding facts especially within the accused's knowledge

Holding

Under Section 111 of the Evidence Act, an accused must prove facts especially within his knowledge, such as how contraband came to be concealed in a vehicle under his exclusive control.

Reasoning

The court quoted Section 111(1) of the Evidence Act and applied it to the facts: once the prosecution established exclusive control and the absence of third-party access, the evidential burden shifted to the appellants to explain the presence of the cannabis. Their denial and silence left the trial court entitled to convict.

p. 4

Legal principles established

#
  • On a second appeal, the Court of Appeal is confined to issues of law and is bound by concurrent findings of fact of the two courts below unless those findings are shown not to be based on evidence.
  • An accused person who has exclusive and uninterrupted control of a conveyance in which a narcotic is concealed, and upon whom a fact is especially within his knowledge, bears the burden of explaining the presence of the drug.
  • Severity of sentence is a matter of fact and cannot be raised on a second appeal restricted to matters of law.

Court orders

#
  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentences imposed by the trial court and affirmed by the High Court stand

The bench

#

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

majority
majority
On appeal from
High Court of Kenya at Kisii
Kisii HCCRA No. 1 & 2 of 2011
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code - second appeals limited to matters of law

Relief refused

#

Quashing of conviction on the ground of lack of common intention

The appellants retained full and uninterrupted control of the trailer and failed to discharge the burden of explaining how the cannabis came to be concealed under it

p. 4

Reduction of sentence on grounds of severity

Severity of sentence is a matter of fact which cannot be entertained on second appeal under Section 361(1)(a) Criminal Procedure Code, and the sentence imposed was lawful

p. 4

Costs

No costs order recorded in the judgment.

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.

On a second appeal, the Court of Appeal is only concerned with points of law. On such an appeal, the court was bound by the concurrent findings of fact made by the lower courts, unless those findings were shown not to be based on evidence.
p. 2Scope of second appeal - points of law only
The appellants did not discharge the said burden at all which it was their duty to do and the trial court was right to convict them.
p. 4Burden on accused to explain facts especially within his knowledge
The appeal has no merit and it is accordingly dismissed.
p. 4Disposition - dismissal of the appeal

Issues in the judgment

#
minor

The judgment recites that the High Court judgment was dated 13th October 2011, but the first appellate judge is elsewhere described as having heard consolidated Criminal Appeal Nos. 1 and 2 of 2011; the record also states the trial judgment was delivered on 22nd December 2010 while the charge was in Criminal Case No. 1795 of 2010 - internally consistent but the appeal numbers are stated as consolidated both at trial level heading and on first appeal.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Munyao Mulela & another v Republic [2013] KECA 71 (KLR)", Case Analysis (2013). Criminal Appeal No. 292 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/71/eng@2013-12-20

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