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Court of AppealDismissedCriminal Appeal No. 180 of 2010· [2013] KECA 399 (KLR)

Edward Maruti Simiyu v Republic [2013] KECA 399 (KLR)

Court of Appeal of Kenya
30 January 2013
OOOnyango OtienoKAKaranjaMartha Karambu KoomeKoome
1,865 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that unexplained possession of recently stolen property can convict you, and second appeals cannot reopen facts.

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 Eldoret against the dismissal by the High Court at Bungoma (Onyancha and Muchemi, JJ.) of the appellant's first appeal against conviction and death sentence for robbery with violence contrary to Section 296(2) of the Penal Code. The appellant was convicted after a bicycle stolen in a robbery at a homestead was found tied to a Matatu, where he claimed ownership, offering first an account of purchase and later denying any connection with it. Under Section 361 of the Criminal Procedure Code, the Court confined itself to issues of law, and counsel pursued only two grounds: reliance on the doctrine of recent possession despite alleged deficiencies in proof of ownership, and the prosecution's failure to call the Matatu driver and turn boy as crucial witnesses. The Court found concurrent findings by the two courts below that the appellant was in recent possession of the bicycle stolen about three weeks earlier, unexplained, invoking Hassan v Republic on the presumption of fact arising from unexplained possession of recently stolen property. On the second ground, applying Bukenya v Uganda, it held that the choice of witnesses is within the prosecution's discretion so long as no gaps are left; PW3's and PW4's evidence covered the identification and arrest, so no adverse inference arose. The appeal was dismissed and the conviction and sentence upheld.

Key legal issues

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01

Doctrine of recent possession - whether the appellant's possession of the stolen bicycle was established and unexplained

Holding

The concurrent findings of the two courts below that the appellant was found in recent possession of the stolen bicycle, which he failed to explain, were sound and gave rise to a presumption that he was one of the robbers

Reasoning

PW3 recognized the bicycle stolen three weeks earlier on a Matatu; the appellant claimed ownership at the scene and at the police station. PW1 had reported the robbery and produced the bicycle manual. The appellant denied ownership in his defence and offered no explanation for possession, triggering the presumption of fact in Hassan v Republic.

p. 3
02

Failure to call crucial witnesses - the Matatu driver and turn boy

Holding

The choice of witnesses to call lies within the prosecution's discretion provided no gaps are left in the evidence; here PW3's and PW4's evidence covered the arrest, so no adverse inference arose

Reasoning

Applying Bukenya v Uganda, the court accepted the prosecution's duty to call material witnesses necessary to establish the truth, but found PW3's account of spotting the bicycle and the appellant claiming ownership, plus the police evidence, left no gaps. The driver's and turn boy's evidence would merely have duplicated PW3's.

p. 3
03

Scope of a second appeal under Section 361 CPC

Holding

Only issues of law are open on second appeal; concurrent findings of fact by the two courts below cannot be disturbed absent misdirection

Reasoning

The court confined itself to the two legal grounds argued and declined to re-evaluate facts, finding no misdirection by the courts below in accepting the evidence of PW3, PW4 and PW5 over the appellant's defence.

p. 3

Legal principles established

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  • On a second appeal under Section 361 of the Criminal Procedure Code, only issues of law fall for consideration by the Court of Appeal
  • Where an accused is found in possession of recently stolen property without a reasonable explanation, a presumption of fact arises that he is the thief or a receiver
  • The prosecution has a discretion as to which witnesses to call, provided its evidence leaves no gaps; but it must call all witnesses necessary to establish the truth, and the court may draw an adverse inference where available witnesses are not called

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence are upheld

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Criminal Procedure CodeSection 361

Cases cited (2)

  • Hassan v Republic
    (2005) 2 KLR
  • Bukenya and others v Uganda
    [1972] 9 of 549
On appeal from
High Court of Kenya at Bungoma
H.C.CR.A No. 2 of 2007
Jurisdiction invoked
Section 361 of the Criminal Procedure Code - second appeal on matters of law only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Edward Maruti Simiyu v Republic [2013] KECA 399 (KLR)", Case Analysis (2013). Criminal Appeal No. 180 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/399/eng@2013-01-30

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