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Court of AppealDismissedCriminal Appeal No. 304 of 2012· [2013] KECA 180 (KLR)

Robert Achapa Okello & 3 others v Republic [2013] KECA 180 (KLR)

Court of Appeal of Kenya
24 October 2013
7,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed that being found with stolen goods is enough for conviction unless you can explain how you got them.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu against the conviction of four appellants for robbery with violence contrary to Section 296(2) of the Penal Code (and, for the first appellant, breaking into a building contrary to Section 306(a)) and against the High Court's dismissal of their first appeals. The trial Senior Principal Magistrate had convicted all four on the doctrine of recent possession after stolen items from a burglary at a carpenter's workshop and a robbery at Nancy Ondeng's house were recovered from premises connected to the appellants. The High Court (Mwera & Karanja JJ) confirmed the convictions, applying Section 4 of the Penal Code's definition of possession, including joint possession. Before the Court of Appeal, the appellants argued that the prosecution evidence was inconsistent, that recoveries were inadmissible following the repeal of Section 31 of the Evidence Act by Act No. 5 of 2003, that the High Court misapplied the possession definition and lowered the standard of proof, and that vital witnesses (the Assistant Chief) were not called. The court applied the Section 361(1)(a) Criminal Procedure Code limitation on second appeals, deferring to concurrent findings of fact. It held that the first recoveries were not confession-led and were admissible; that Section 4(b) joint possession was correctly invoked and knowledge and consent are proved through circumstances and conduct; and that no adverse inference arose from the uncalled Assistant Chief since the prosecution evidence was overwhelming. The appeal was dismissed in its entirety by a unanimous bench.

Key legal issues

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01

Scope of second appellate jurisdiction under Section 361(1)(a) Criminal Procedure Code

Holding

The Court of Appeal on a second appeal will not disturb concurrent findings of fact; it may intervene only where no reasonable tribunal could have reached the conclusion reached.

Reasoning

The court noted that by dint of Section 361(1)(a) it had no jurisdiction to entertain an attack on findings of fact that were supported by evidence. It applied the M'Iriungu v Republic principle: findings of fact of lower courts must be accepted unless it is apparent on the evidence that no reasonable tribunal could have reached that conclusion, which would amount to a decision bad in law.

p. 7
02

Admissibility of confession-led recoveries after repeal of Section 31 of the Evidence Act

Holding

Repeal of Section 31 renders confession-led recoveries inadmissible, but recoveries made independently of confessions are admissible; even confession-led recoveries may still support an inference of knowledge requiring explanation under Section 111.

Reasoning

The court held that the first recoveries resulted from investigation triggered by Nancy's report and the handcart man's information, not from any confession. Where goods are recovered following a confession, the information still indicates knowledge of stolen items, triggering the Section 111 evidential burden on the accused to explain the possession.

p. 8
03

Joint possession under Section 4(b) of the Penal Code and the doctrine of recent possession

Holding

Persons found together in a house with stolen goods openly displayed are jointly in possession within Section 4(b); the prosecution need not prove knowledge and consent by direct evidence of communication.

Reasoning

The court confirmed that the High Court relied on the second limb (Section 4(b)) of the Penal Code definition of possession. Being found together cooking in a house where stolen items lay undiscovered only because they were not hidden, and failing to explain the goods, justified the concurrent convictions on the doctrine of recent possession.

p. 9
04

Failure to call vital witnesses

Holding

An adverse inference for uncalled witnesses arises only where the prosecution's evidence is barely adequate; where the evidence is overwhelming, the uncalled witness's testimony would be superfluous.

Reasoning

Relying on Bukenya v Uganda, the court accepted the principle but found it inapplicable: the Assistant Chief did not accompany the recovery team, and the recoveries were proved by Shadrack, Barasa and Nancy. The Chief himself testified about the administration's role, so the Assistant Chief's evidence would have added a superfluity of evidence.

p. 9

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to questions of law and must not interfere with concurrent findings of fact of the trial court and first appellate court unless no reasonable tribunal could have reached that conclusion.
  • Evidence of recovery of stolen goods as a result of a confession is no longer admissible following the repeal of Section 31 of the Evidence Act in 2003; however, evidence of recoveries made independently of any confession remains admissible.
  • Where two or more persons are found together with stolen goods and one or more of them, with the knowledge and consent of the rest, has the goods in custody, each and all are deemed in possession under Section 4(b) of the Penal Code; knowledge and consent are proved through circumstances and conduct, not direct evidence of communication.
  • An adverse inference from failure to call a witness may be drawn only where the evidence tendered is barely adequate to prove the case; no particular number of witnesses is required under Section 143 of the Evidence Act.

Court orders

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  1. 1.The appeal is dismissed; the convictions and sentences imposed by the trial court and confirmed by the High Court stand

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 306(A)
  • Penal CodeSection 4
  • Penal CodeSection 4(a)
  • Penal CodeSection 4(b)
  • Evidence Act (Chapter 80, Laws of Kenya)Section 31 (repealed)
  • Evidence ActSection 111
  • Evidence ActSection 143
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 169
  • Criminal Procedure CodeSection 215
  • Act No. 5 of 2003Repeal of Section 31 of the Evidence Act

Cases cited (3)

  • M'Iriungu v. Republic
    (1983) KLR 455
  • Martin v Glyneed Distributors Ltd t/a MBS Fastenings
    (The Times of March, 30, 1983)
  • Bukenya and others vs. Uganda
    (1972) EA 549
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 179, 180, 181 & 182 of 2005
Jurisdiction invoked
Second appellate jurisdiction under Section 361(1)(a) of the Criminal Procedure Code (appeal confined to questions of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Robert Achapa Okello & 3 others v Republic [2013] KECA 180 (KLR)", Case Analysis (2013). Criminal Appeal No. 304 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/180/eng@2013-10-24

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