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Court of AppealDismissedCriminal Appeal No. 371 of 2009· [2013] KECA 98 (KLR)

Eliud Moses Owino Opwapo v Republic [2013] KECA 98 (KLR)

Court of Appeal of Kenya
8 November 2013
3,918 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 if you're found with recently stolen goods and can't explain how, you can be convicted of robbery.

What this practically means

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Executive summary

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The appellant was convicted by the Principal Magistrate's Court at Siaya of robbery with violence contrary to section 296(2) of the Penal Code (sentenced to death) and possession of narcotic drugs (four years imprisonment). His first appeal to the High Court at Kisumu (Mwera and Karanja, JJ) was dismissed on 1st December 2009, prompting this second appeal to the Court of Appeal at Kisumu. The court confined itself to matters of law under section 361(1)(a) of the Criminal Procedure Code, restating that a second appellate court will not disturb concurrent findings of fact unless they are perverse. Three legal issues were considered: failure by the first appellate court to re-evaluate the evidence; admission of Safaricom telephone call data without an expert; and alleged breach of constitutional rights through an 18-day delay in production before court. The court held that the robbery was proved by the complainant, his watchman, and medical evidence, and that conviction properly rested on the doctrine of recent possession: the stolen phone and watch were recovered from the appellant's house, the stolen phone bore his photograph taken days after the robbery, and he offered no explanation for his possession. While acknowledging that an expert from the service provider should have been called to explain the call data, the court held the conviction was independently supported by the recovery of the items with matching serial numbers. On the delay, following Dominic Mutie Mwalimu and Paul Mwangi Murunga, the court found a delay of about two days beyond the permitted period was not inordinate and did not warrant acquittal. The appeal was dismissed in its entirety.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on second appeals

Holding

Second appeals lie only on matters of law; severity of sentence is a matter of fact.

Reasoning

Section 361 (1) (a) of the Criminal Procedure Code expressly restricts second appeals to matters of law. The court adopted the restatement in Thiongo v Republic that concurrent findings of fact by the two courts below cannot be disturbed on a second appeal unless shown to be perverse, that is, findings no reasonable tribunal could have made on the evidence.

p. 2
02

Re-evaluation of evidence and proof beyond reasonable doubt

Holding

The High Court on first appeal properly re-evaluated the evidence and correctly upheld the conviction founded on the doctrine of recent possession.

Reasoning

The court found no identification of the masked assailants, but the robbery itself was proved by the complainant, the watchman, the clinical officer's evidence of injuries and the police arrival at the scene. The stolen phone and watch were recovered from the appellant's house, the phone bore his photograph taken days after the robbery, and he offered no explanation, so the first appellate court's satisfaction with the conviction was sound.

p. 5
03

Admissibility and weight of telephone call data not produced by an expert

Holding

Although it was desirable to call an expert from the service provider, the conviction stood on independent evidence of recovery of the stolen items bearing matching serial numbers and the appellant's photograph in the phone.

Reasoning

The court acknowledged that the prosecution should have summoned an expert from the telephone service provider to explain the compilation of the call data. However, the failure was not fatal because the recovery of the stolen phone and watch with matching serial numbers, and the appellant's image captured in the phone shortly after the robbery, independently shifted the evidential burden to the appellant to explain his possession.

p. 5
04

Constitutional rights breach arising from delay in production before court

Holding

A delay of about two days in producing the appellant before court was not inordinate and did not warrant an acquittal.

Reasoning

Relying on Dominic Mutie Mwalimu v Republic, the court held that mere production of an accused beyond the stipulated period does not ipso facto prove a constitutional breach. Following Paul Mwangi Murunga v Republic and Ndede v Republic, the prosecution may offer a reasonable explanation for delay; where the delay is for a few days it is countenanced. Here the delay of about two days was not inordinate.

p. 7

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 unless those findings are perverse.
  • An accused person found in possession of recently stolen property bears a duty in law to explain how he came to be in possession, failing which the doctrine of recent possession may sustain a conviction.
  • A short delay (of one or two days) in producing an accused person before court beyond the constitutional period is not inordinate and does not ipso facto amount to a constitutional breach warranting acquittal.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence imposed by the subordinate court and upheld by the High Court on first appeal remain in force

Authorities

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Legislation

  • Penal CodeSection 296 (2)
  • Penal CodeSection 322 (2)
  • Psychotropic Substance Control Act No. 4/19 Chapter 70 Laws of KenyaSection 3 (1) as read with Section 3 (2) (a)
  • Criminal Procedure CodeSection 361 (1) (a)
  • Evidence ActSection 111 (1) and (2)
  • The retired Constitution of KenyaSection 72 (3)

Cases cited (8)

  • Thiongo v Republic
    [2004] 1 EA 333
  • Njoroge v Republic
    [1982] KLR 388
  • Isaac Nanga Kahiga Alias Peter Nganga Kahiga vs Republic Criminal Appeal No. 272 of 2005
    unreported
  • Dominic Mutie Mwalimu v Republic Criminal Appeal No. 217 of 2005
    unreported
  • Paul Mwangi v Republic Criminal Appeal No. 35 of 2006
    unreported
  • Paul Mwangi Murunga v Republic Nakuru Criminal Appeal No. 35 of 2006
    unreported
  • Ndede v Republic
    [1991] KLR 567
  • Albanus Mwasia Mutua v Republic Criminal Appeal No. 120 of 2004
    unreported
On appeal from
High Court of Kenya at Kisumu
HCCRA No. 50 of 2008
Jurisdiction invoked
Section 361 (1) (a) of the Criminal Procedure Code limiting second appeals to matters 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, "Eliud Moses Owino Opwapo v Republic [2013] KECA 98 (KLR)", Case Analysis (2013). Criminal Appeal No. 371 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/98/eng@2013-11-08

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