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Court of AppealPartially AllowedCriminal Appeal No. 256 of 2011· [2014] KECA 60 (KLR)

Omar Ali Haribae & another v Republic [2014] KECA 60 (KLR)

Court of Appeal of Kenya
25 September 2014
WKW. KaranjaASAsike-MakhandiaFSF. Sichale
5,169 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed one robbery conviction but upheld another, clarifying exactly what prosecutors must prove to rely on recently found stolen property.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Karanja, Makhandia and Sichale, JJ.A.) heard a second appeal by Omar Ali Haribae and James Mohamed Mwoyu against their convictions for two counts of robbery with violence contrary to section 296(2) of the Penal Code and the mandatory death sentence, following dismissal of their first appeals by the High Court at Malindi (Omondi & Odero, JJ.). The appellants were accused of robbing and killing two men whose headless, limbless torsos were found in Kangawati forest in Lamu in May 2003, with their bicycles later recovered. The Court reaffirmed that on a second appeal under section 361(1)(a) of the Criminal Procedure Code its jurisdiction is limited to matters of law. On identification, it held this was a case of recognition by a witness who had known the 1st appellant for over two years, across three encounters, and declined to disturb the concurrent findings below. The Court articulated the four elements the State must prove beyond reasonable doubt to invoke the doctrine of recent possession - that the property was stolen, was found in the accused's exclusive physical or constructive possession, was positively identified as the complainant's, and that possession was sufficiently recent - with the burden then shifting to the accused to rebut. It upheld count I, holding the doctrine properly applied. However, it found doubt in respect of count II, given the possibility that an untraced 'Kamba man' was involved, and allowed the appeal on that count only, quashing the conviction and setting aside the sentence. The Court declined to substitute a charge of handling stolen goods as unnecessary given the conviction on count I.

Key legal issues

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01

Identification of the 1st appellant

Holding

The concurrent findings of the two courts below on identification were safe; this was a case of recognition by a person known to the witness for over two years, with three separate encounters, not a fleeting visual identification

Reasoning

The identification evidence rested on multiple encounters: at the Mangwe den in daylight at close range, on the road before dusk where the 1st appellant answered to his name, and when the appellants rode past. Njuguna had known the 1st appellant since 2002, making this recognition rather than mere visual identification. Concurrent findings based on solid facts ought not to be disturbed on second appeal.

p. 6
02

Doctrine of recent possession - count I

Holding

Correctly invoked against both appellants in respect of the robbery of the 1st deceased; the 1st appellant was in physical possession of the stolen bicycle and the 2nd in joint possession

Reasoning

The bicycle of the 1st deceased was recovered from the 1st appellant's house and positively identified by family members through distinct physical features. The deceased's abandoned bicycle with luggage was seen at Kangawati, after which the appellants rode past on it. Recovery about eleven days later was recent; a bicycle is not easily assimilated into trade channels. The doctrine was properly applied and there was no basis for interference.

p. 7
03

Doctrine of recent possession - count II

Holding

Not safely invoked in respect of the 2nd deceased; doubt remained as to whether the appellants participated in his death, including the untraced 'Kamba man' last seen with him

Reasoning

The 2nd deceased was last seen riding his bicycle by Kamau and said he was heading to Lamu, in the company of an untraced 'Kamba man'. There was no evidence of what he carried or which road he took. Constructive possession of his recovered bicycle alone could ground handling stolen goods, not robbery with violence. Given the doubt, the conviction and sentence on count II could not stand.

p. 8

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law unless the courts below failed to consider relevant matters or their decision was plainly erroneous, in which case such matters become matters of law
  • The doctrine of recent possession may only be invoked where the State proves beyond reasonable doubt four elements: that the property was stolen, that it was found in the exclusive physical or constructive possession of the accused, that it was positively identified as the complainant's property, and that the possession was sufficiently recent
  • Once the elements of recent possession are proved, the burden shifts to the accused to offer an explanation in rebuttal, failing which an inference is drawn that he either stole the property or was a guilty receiver
  • Constructive possession suffices for the doctrine of recent possession; a person who leads police to the whereabouts of stolen property has exclusive knowledge of its whereabouts and is deemed in constructive possession under the definition of possession in section 4 of the Penal Code
  • The prosecution is not obliged to call a superfluity of witnesses whose roles are minimal
  • A person unlawfully detained beyond the constitutionally permissible period seeks redress by way of compensation in damages, not acquittal

Court orders

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  1. 1.Conviction and sentence in respect of count I affirmed and shall remain
  2. 2.Appeal allowed in respect of count II
  3. 3.Conviction in respect of count II quashed
  4. 4.Sentence in respect of count II set aside

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 4 (definition of possession)
  • Penal Codesection 322 (handling stolen goods)
  • Criminal Procedure Codesection 200(3)
  • Criminal Procedure Codesection 361(1)(a)
  • Evidence Actsection 119
  • Evidence Actsection 31 (repealed)

Cases cited (4)

  • Rona v R
    [1967] EA 583
  • Kiarie v R
    [1984] KLR 741
  • R v Loughlin
    35 CR App. 1269; (1951) WN 325; 49 LGR 545
  • Matu v Republic
    [2001] 1 KLR 510
On appeal from
High Court of Kenya at Malindi
H.C.Cr.A. No. 118 of 2008
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal limited to 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, "Omar Ali Haribae & another v Republic [2014] KECA 60 (KLR)", Case Analysis (2014). Criminal Appeal No. 256 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/60/eng@2014-09-25

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