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Court of AppealDismissedCriminal Appeal No. 75 of 2008· [2013] KECA 90 (KLR)

Moses Mwangi Kihara v Republic [2013] KECA 90 (KLR)

Court of Appeal of Kenya
10 December 2013
3,180 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 confirmed that unexplained possession of stolen goods soon after a theft can lead to a conviction for handling stolen property.

What this practically means

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Executive summary

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This was a second appeal by Moses Mwangi Kihara against the High Court at Nyeri's judgment of 7 May 2008, which quashed his conviction for robbery with violence, set aside the death sentence, and instead convicted him on the alternative count of handling stolen property without passing sentence. The appellant, arrested a day after a robbery while carrying a sack containing a stolen L.G T.V set, argued that the evidence of identification of the T.V set was contradictory, that corroboration of the recovering officer's evidence was necessary, that the language used at plea-taking was not indicated on the record contrary to section 77(2)(b) of the former Constitution, and that his defence was ignored. The Court of Appeal (Visram, Koome & Odek, JJ.A), in a single judgment of the court, reaffirmed that a second appeal is confined to matters of law and will not disturb concurrent findings of fact unless based on no evidence, misapprehension of evidence, or wrong principles. It held that no particular number of witnesses is required to prove a fact; that the discrepancy in the recorded serial number of the T.V set was curable under section 382 of the Criminal Procedure Code, the receipt's serial number matching the recovered set; and that, applying the recent-possession doctrine (Andrea Obonyo), the appellant's unexplained possession of the set a day after the theft, his flight from police and refusal to open the sack established the mens rea for handling stolen property at the time of receipt (Ratilal v Republic). The appeal was dismissed, the conviction affirmed, and the Court, filling the gap left by the High Court, sentenced the appellant to nine years imprisonment from the date of arrest and, since he had served that term, directed that he be set at liberty unless otherwise lawfully held. No order as to costs is recorded.

Key legal issues

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01

Scope of a second appeal

Holding

The Court is restricted to matters of law only and will not disturb concurrent findings of fact unless they are based on no evidence, a misapprehension of evidence, or wrong principles.

Reasoning

As a second appeal, the Court may only address points of law. Following Chemangong v R and Kaingo v R, concurrent findings of fact by the trial court and the High Court stand unless demonstrably unsupported by evidence or founded on wrong principles. The test is whether there was any evidence on which the trial court could find as it did.

p. 3
02

Indication of language used at plea-taking

Holding

The ground failed; the record showed the charges were explained to the appellant in a language he understood and to which he pleaded not guilty.

Reasoning

Although the appellant relied on section 77(2)(b) of the former Constitution, this contention was not raised in the first appeal. On perusal of the record, the Court was satisfied the charges were explained in a language he understood. The omission did not occasion a failure of justice on these facts.

p. 4
03

Corroboration of evidence of recovery

Holding

No particular number of witnesses or independent corroboration is required; PC Patrick's uncontroverted evidence of recovery of the T.V set on the appellant a day after the robbery sufficed.

Reasoning

The appellant argued that PC Patrick's evidence of recovery required independent corroboration. Relying on section 143 of the Evidence Act, which requires no particular number of witnesses for the proof of any fact, the Court found the evidence of recovery uncontroverted and rejected the call for corroboration.

p. 4
04

Identification of the stolen T.V set despite serial number discrepancies

Holding

The discrepancy in Mary's statement as to the serial number was curable under section 382 of the Criminal Procedure Code; the receipt's serial number matched that on the recovered set, establishing positive identification.

Reasoning

PC Patrick did not record a serial number and Mary's statement gave a different serial number than the receipt. The Court held the discrepancy inconsequential: the receipt produced by Evans bore serial number 0035Y00327, matching the recovered T.V set, and the evidence of purchase and identification was uncontroverted. The prosecution therefore proved the recovered set was the stolen one beyond reasonable doubt.

p. 4
05

Conviction on the alternative count of handling stolen property

Holding

The recent-possession doctrine supports conviction of theft or receiving according to which is more likely; on these facts the proper inference was that the appellant was a handler, not a robber.

Reasoning

Applying Andrea Obonyo v Republic and Anthony Kariuki Kareri v Republic, the Court found that recovery of the T.V set on the appellant a day after the robbery did not establish guilt for robbery with violence, which needed corroborative evidence. The circumstances supported the inference that he handled the stolen set, sustaining the High Court's substitution of conviction on the alternative count.

p. 5
06

Ingredients of handling stolen property and sentence

Holding

The prosecution proved knowledge or reason to believe the goods were stolen at the time of receipt, from the appellant's conduct and unexplained possession; the maximum sentence is fourteen years and the Court imposed nine years from the date of arrest.

Reasoning

Under section 322(1) of the Penal Code, the prosecution had to prove dishonest receipt or retention and knowledge or reason to believe the goods were stolen at the time of receipt (Ratilal v Republic). The appellant's flight from police, refusal to open the sack, and possession a day after the theft, coupled with his failure to explain his possession (Odongo v Republic), established mens rea. As the High Court omitted to sentence, the Court, noting the appellant had served nine years, sentenced him to nine years from the date of arrest.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two lower courts unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.
  • A presumption of fact arises that a person in possession of stolen goods soon after a theft is either the thief or a handler who received the goods knowing them to be stolen, unless he can account for his possession.
  • Where a person is charged with theft and, in the alternative, receiving, and the sole evidence connecting him with the offence is recent possession of stolen property, he should be convicted of theft or receiving according to which is more likely in the circumstances.
  • The mens rea for handling stolen goods must exist at the time of receipt of the goods.
  • Discrepancies in the prosecution case are assessed under section 382 of the Criminal Procedure Code: they do not vitiate a conviction unless they are so fundamental as to cause prejudice to the accused.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant sentenced to nine years imprisonment to run from the date of his arrest
  3. 3.Appellant, having served his sentence, directed to be set at liberty unless otherwise lawfully held

Authorities

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Legislation

  • Penal Code, Chapter 63, Laws of KenyaSection 296(2)
  • Penal Code, Chapter 63, Laws of KenyaSection 322(2)
  • Penal Code, Chapter 63, Laws of KenyaSection 322(1)
  • Evidence Act, Chapter 80, Laws of KenyaSection 111
  • Evidence Act, Chapter 80, Laws of KenyaSection 143
  • Criminal Procedure Code, Chapter 75, Laws of KenyaSection 382
  • Former Constitution of KenyaSection 77(2)(b)

Cases cited (8)

  • Chemangong -vs- R
    [1984] KLR 611
  • Kaingo vs- R
    (1982) KLR 213
  • Reuben Karari C/O Karanja -vs- R
    (1956) 17 EACA 146
  • Joseph Maina Mwangi -vs- Republic
    Criminal Appeal No. 73 of 1993
  • Andrea Obonyo -vs- Republic
    (1962) EA 542
  • Anthony Kariuki Kareri -vs- Republic
    Criminal Appeal No. 110 of 2002
  • Ratilal -vs- Republic
    (1971) EA 575
  • Odongo -vs- Republic
    Criminal Appeal No. 82 of 1983
On appeal from
High Court of Kenya at Nyeri
H.C.CR.A No. 178 of 2005
Jurisdiction invoked
Second appeal to the Court of Appeal on matters of law only, under the framework governing appeals from the High Court in criminal cases (Penal Code and Criminal Procedure Code appeal provisions; the judgment states the appeal is confined to points of law)

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, "Moses Mwangi Kihara v Republic [2013] KECA 90 (KLR)", Case Analysis (2013). Criminal Appeal No. 75 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/90/eng@2013-12-10

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