David Mutune Nzongo v Republic [2014] KECA 699 (KLR)

Citing Okeno v Republic and David Njuguna Wairimu, the Court reiterated that the first appellate court must reconsider, evaluate and draw its own conclusions on the evidence. On the record, the learned Judges went beyond rehashing the trial court's conclusions, and it was that re-evaluation that led to the co-accused being set free. Even if the re-evaluation lacked detail, the test is whether a failure of justice was occasioned; none was here.

Following Peter Gachigwa Migwi, David Irungu Murage and J A O v Republic, the Court held that the law does not oblige a trial court to take a fresh plea on recommencement under section 200(1)(b) CPC; the test is prejudice. The appellant was represented by counsel, participated fully in the trial, never indicated a readiness to plead guilty, and raised no complaint; hence no failure of justice was occasioned.

Under section 119 of the Evidence Act there is a rebuttable presumption of fact that one found in possession of recently stolen property is either the robber or a guilty receiver. The burden of offering a reasonable explanation lies on the accused, as the facts of possession are exclusively within his knowledge; this does not shift the prosecution's burden. PW1 positively identified his Bird phone and Seiko watch, recovered from the appellant only hours after the robbery. Concurrent findings were not open to interference.

Under section 143 of the Evidence Act no particular number of witnesses is required to prove a case. The High Court noted the arrest and recovery evidence came from a single witness, was routine police work involving strangers, and found no reason to falsely implicate the appellant; it was therefore entitled to believe that evidence, which alone supports the conviction even though the identification evidence was found insufficient.