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Court of AppealPartially AllowedCriminal Appeal No. 71 of 2010· [2013] KECA 511 (KLR)

Rasto Muyela v Republic [2013] KECA 511 (KLR)

Court of Appeal of Kenya
7 June 2013
JOJ.W. Onyango OtienoFAF. AzangalalaSKS. ole Kantai
3,589 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted of robbery merely for possessing a stolen radio 72 days later, ruling the gap was too long.

What this practically means

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Executive summary

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The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Senior Resident Magistrate's Court at Vihiga and sentenced to death, solely on the basis that he was found in possession of a radio stolen during the robbery. The High Court at Kakamega (Ombija and Kariuki, JJ.) dismissed his first appeal, upholding the conviction on the doctrine of recent possession on the premise that the radio was found in his possession 11 days after the robbery. On second appeal to the Court of Appeal at Kisumu (Onyango Otieno, Azangalala and Kantai, JJ.A.), the respondent conceded the appeal. The Court held that the first appellate court had proceeded on wrong facts: the radio was recovered 72 days, not 11 days, after the robbery, and a radio, being an unlicensed item that passes readily from hand to hand, could not support an inference of participation in the robbery after such a lapse. The Court further held that the trial magistrate had impermissibly shifted the burden of proof onto the accused by requiring a written loan agreement to support his explanation that one Sylvanus had given him the radio as security, and that the explanation, being reasonable and possibly true, ought to have been accepted under the Kipsaina standard. The Court also deprecated the improper joint representation of co-accused with conflicting interests. The appeal was allowed, the conviction quashed, the death sentence set aside, and the appellant ordered set at liberty unless otherwise lawfully held. The Court declined to pronounce on the unadjudicated handling charge for want of a finding below.

Key legal issues

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01

Application of the doctrine of recent possession where possession is remote in time

Holding

The first appellate court proceeded on wrong facts (11 days instead of 72 days after the robbery); the possession was not recent and could not sustain a conviction for robbery, especially for an item like a radio that passes easily from hand to hand

Reasoning

The robbery occurred on 8 March 2004 and the radio was taken for repair by the appellant on 19 May 2004, a lapse of 72 days. The High Court's finding of 11 days was a misapprehension of the evidence permitting appellate interference. A radio requires no licence and moves rapidly between hands, so a 72-day lapse defeated any inference that the possessor was one of the robbers.

p. 5
02

Standard of explanation required of an accused charged with handling stolen property

Holding

An explanation that is reasonable and might possibly be true must be accepted, even if the court does not believe it is actually true

Reasoning

The appellant consistently stated, at the police station and at plea, that one Sylvanus gave him the radio as security for a loan; that statement led to Sylvanus's arrest and charge. The trial court erred in demanding a written loan agreement, effectively converting a criminal trial into a civil one and shifting the burden of proof. The explanation was reasonable, explained the possession, and entitled the appellant to the benefit of doubt.

p. 5
03

Shifting the burden of proof in a criminal trial

Holding

The trial magistrate's requirement that the appellant produce an agreement evidencing the loan transaction impermissibly shifted the burden of proof onto the accused

Reasoning

The magistrate rejected the appellant's defence because no agreement was availed and no written acknowledgment existed. The court held that this converted the criminal trial into a civil one; the burden of proof lies on the prosecution throughout, subject only to statutory exceptions such as section 111 of the Evidence Act.

p. 3
04

Conflict of interest in joint representation of co-accused

Holding

One advocate representing three co-accused with conflicting interests was improper and prejudiced the appellant's defence, though it did not by itself ground the appeal

Reasoning

The appellant's defence changed between plea and hearing, which the court attributed to the single advocate's failure to appreciate the ethical problem of representing three people with conflicting interests. The court condemned the practice as clearly improper while holding that the appeal succeeded on the doctrine of recent possession and burden of proof grounds.

Legal principles established

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  • On a second appeal the Court of Appeal will not interfere with findings of fact by the first appellate court except where such findings are based on a misapprehension of the facts
  • In a charge of receiving or handling stolen property, the accused's guilt is not established if his explanation is reasonable and might possibly be true, even if the court is not convinced it is actually true
  • The burden of proof in a criminal case must not be shifted onto the accused except under section 111 of the Evidence Act
  • Possession of stolen goods long after the robbery cannot, without more, found a conviction for robbery under the doctrine of recent possession

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction of robbery with violence is quashed
  3. 3.The sentence of death is set aside
  4. 4.The appellant shall be henceforth set at liberty unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 322(2)
  • Evidence Actsection 111

Cases cited (4)

  • R. vs. Loughin
    35 Cr. App. 69
  • Samuel Munene Mayu vs. Republic
    Criminal Appeal No. 108 of 2003 at Nyeri
  • Kipsaina vs. Republic
    (1975) EA 253
  • Maina & 3 others vs. Republic
    (1986) KLR 301
On appeal from
High Court of Kenya at Kakamega
Cr.A. No. 108 of 2005
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (matters of law only); judgment does not state the provision expressly

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, "Rasto Muyela v Republic [2013] KECA 511 (KLR)", Case Analysis (2013). Criminal Appeal No. 71 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/511/eng@2013-06-07

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