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Court of AppealAllowedCriminal Appeal No. 315 of 2012· [2014] KECA 259 (KLR)

Josephat Kisilu Mulinge v Republic [2014] KECA 259 (KLR)

Court of Appeal of Kenya
14 November 2014
Mohamed Abdulahi WarsameM. WarsameGKG. B. M. KariukiPKP. O. Kiage
4,255 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 quashed a robbery conviction, ruling that simply being near stolen property—without proof of control—is not possession and cannot justify conviction.

What this practically means

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Executive summary

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The Court of Appeal allowed this second appeal against conviction and death sentence for robbery with violence under Section 296(2) of the Penal Code. The appellant had been convicted by the Principal Magistrate at Machakos after a stolen radio and wrist watch were recovered from a kiosk owned by the first accused, at which the appellant was found listening to music. The High Court dismissed his first appeal, holding that the evidential burden had shifted to the accused persons to explain their possession of the stolen items under Section 111(1) of the Evidence Act. On the second appeal, confined by Section 361 of the Criminal Procedure Code to matters of law, the Court held that the courts below had erred in failing to analyse the evidence and make a finding whether the appellant exercised actual or constructive control over the radio or knew it was stolen. Mere presence in the kiosk and listening to the radio did not ipso facto amount to possession; suspicion, however strong, cannot found a conviction. Applying Arum v Republic and Munyole v R, the Court held that proof of control over the stolen item is a sine qua non to the application of the doctrine of recent possession, and that in a joint trial the evidence against each accused must be considered separately. The conviction was quashed, the sentence set aside, and the appellant ordered set free forthwith unless otherwise lawfully held.

Key legal issues

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01

Whether listening to music from a stolen radio in another person's kiosk constituted possession for the doctrine of recent possession

Holding

No - possession requires knowledge of the item and power or control over it, neither of which was established; the doctrine was a misdirection.

Reasoning

The appellant neither owned nor lived in the kiosk and there was no finding that he exercised control over the radio. Mere presence and listening to music did not ipso facto prove possession, whether actual or constructive, or knowledge that the radio was stolen. No evidence linked him to the gang that brought the items to the kiosk. Possession, as defined in Black's Law Dictionary, requires knowledge and control, and none was proved.

p. 5
02

Whether the courts below properly evaluated the evidence before applying the doctrine of recent possession

Holding

No - the courts failed to make findings whether the appellant controlled the radio and whether he and the 1st accused possessed the items jointly.

Reasoning

The superior court proceeded on the footing that the kiosk owner and the appellant jointly possessed the stolen items without making a factual finding of control. Following Arum and Munyole, failure to analyse the evidence so as to establish which accused possessed which goods is an error of law. The contradictory evidence of arrest, search and recovery could not support a conviction based on possession.

p. 6
03

Scope of second appeals under Section 361 of the Criminal Procedure Code

Holding

A second appeal lies only on matters of law; the court defers to lower court findings of fact unless circumstances warrant otherwise, and failure to analyse evidence is an error of law.

Reasoning

Section 361 bars second appeals on matters of fact, including severity of sentence. However, the failure by the trial court and first appellate court to analyse the evidence and make findings on possession constituted an error of law falling within the court's remit, justifying interference with the concurrent findings below.

p. 2

Legal principles established

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  • Proof of control over the thing stolen is a prerequisite to the application of the doctrine of recent possession.
  • Mere presence at a scene where stolen property is found, without more, does not amount to possession or guilty knowledge.
  • Before relying on the doctrine of recent possession, the court must find positive proof that the property was found with the suspect, identified, stolen and recently stolen.
  • In a joint trial, the evidence against each accused must be considered separately and the case against each proved beyond reasonable doubt.
  • A second appeal court is confined to matters of law and defers to concurrent findings of fact of the lower courts absent exceptional circumstances.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence of death set aside
  4. 4.Appellant to be set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Code, Chapter 63 of the Laws of KenyaSection 296(2)
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 361
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 150
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 169(1)
  • Evidence Act, Chapter 80 of the Laws of KenyaSection 111(1)

Cases cited (3)

  • ARUM V. REPUBLIC
    [2006] 2 EA 10
  • MUNYOLE V. R.
    [1985] KLR 662
  • R. V. Loughlin
    35 Cr. App. R. 68, CCA
On appeal from
High Court of Kenya at Nairobi
Machakos H.C.CR.A. No. 129 of 2006
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 (5)

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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, "Josephat Kisilu Mulinge v Republic [2014] KECA 259 (KLR)", Case Analysis (2014). Criminal Appeal No. 315 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/259/eng@2014-11-14

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