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Court of AppealDismissedCriminal Appeal No. 54 of 2014· [2015] KECA 726 (KLR)

Peter Kimani Kabando v Republic [2015] KECA 726 (KLR)

Court of Appeal of Kenya
13 May 2015
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
3,392 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that being caught handling a recently stolen item, without a reasonable explanation, is enough to sustain a robbery conviction.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate at Siakago on 3rd September 2009 of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. The charge arose from the robbery of PW1 on 18th December 2008 of Kshs. 25,000 and a mobile phone; the appellant was linked to the offence two days later when he transferred the stolen phone to PW3 as a pledge for a Kshs. 700 loan, after which the phone was traced and the appellant arrested. His first appeal to the High Court at Embu (Sergon and Ongundi, JJ) was dismissed on 18th May 2012. On second appeal, counsel for the appellant attacked the first appellate court's re-evaluation of the evidence, the application of the doctrine of recent possession, contradictions over whether the phone was sold or pledged, the failure to treat PW3's evidence with caution as an erstwhile suspect, and the discrepancy between the dates of arrest and arraignment. The Court of Appeal, applying Section 361(1) of the Criminal Procedure Code, confined itself to questions of law. It held the first appellate court properly discharged its mandate; that possession under Section 4 of the Penal Code need not be actual; that the appellant failed to give a plausible explanation for handling a recently stolen item; that the contradictions were immaterial or curable under Section 382; and that the date discrepancy was a typing error. The appeal was dismissed in its entirety on 13th May 2015. No costs order was recorded.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to questions of law; the Court of Appeal cannot disturb concurrent findings of fact supported by evidence

Reasoning

Relying on Section 361(1) of the Criminal Procedure Code and Rex v Hassan Bin Said, the court held it is precluded from questioning findings of fact where there was evidence to support them, and may only interfere where findings rest on no evidence or a misdirection of such gravity that a conviction could not reasonably have followed.

p. 3
02

Duty of the first appellate court

Holding

The first appellate court must re-evaluate the evidence afresh and reach its own conclusions; the Embu High Court did so

Reasoning

The court adopted Kiilu v Republic and found the first appellate court expressly acknowledged its duty to reconsider and re-evaluate the evidence, summarised it, and weighed it against the trial court's findings before affirming conviction, so no procedural fault arose.

p. 4
03

Doctrine of recent possession and nature of possession

Holding

Possession under Section 4 of the Penal Code includes constructive possession; the appellant failed to give a plausible explanation for handling the recently stolen phone

Reasoning

PW3, though initially a suspect, discharged the burden by explaining possession through the appellant, supported by PW5 and PW6. The appellant offered no reasonable explanation. There is no requirement that the accused be found in actual possession of the stolen item; the manner of transfer (sale or pledge) was immaterial.

p. 4
04

Contradictions and discrepancies

Holding

The sale-versus-pledge contradiction and the date discrepancies were immaterial or curable and did not vitiate the conviction

Reasoning

Section 382 of the Criminal Procedure Code requires courts to consider whether a contradiction is material or curable. The sale/pledge issue did not go to the element in contest (possession); PW6's evidence independently supported PW3's, consistent with Section 143 of the Evidence Act; and the date discrepancy was a typing error.

p. 5

Legal principles established

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  • A second appeal to the Court of Appeal lies on matters of law only and the Court cannot interfere with concurrent findings of fact unless based on no evidence or a misdirection
  • Possession of stolen property for purposes of the doctrine of recent possession includes constructive possession under Section 4 of the Penal Code, and an accused must give a reasonable explanation
  • It is immaterial whether a recently stolen item was received on sale or pledge; what matters is that the accused handled it and failed to explain

Court orders

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  1. 1.Appeal dismissed

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal Code (Cap 63)Section 4
  • Criminal Procedure CodeSection 361(1)
  • Criminal Procedure Code (Cap 75)Section 382
  • Evidence Act (Cap 80)Section 143

Cases cited (6)

  • Rex v. Hassan Bin Said
    [1942] EACA 62
  • Ganzi & 2 others v. Republic
    [2005] 1 KLR 52
  • Kiilu and another versus Republic
    [2005] KLR 174
  • Gachuru versus Republic
    [2005] 1 KLR 688
  • Josiah Asuna Angulu versus Republic
    Criminal Appeal No. 277 of 2006 (UR)
  • Charles Kiplang'at Ng'eno versus Republic
    Nakuru Criminal Appeal No. 77 of 2009 (UR)
On appeal from
High Court of Kenya at Embu
H.C. CR.A. NO. 168 OF 2009
Jurisdiction invoked
Section 361(1) 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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Cite this brief

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Cite this brief

Caselaw, "Peter Kimani Kabando v Republic [2015] KECA 726 (KLR)", Case Analysis (2015). Criminal Appeal No. 54 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/726/eng@2015-05-13

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