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Court of AppealDismissedCriminal Appeal No. 125 of 2013· [2015] KECA 988 (KLR)

Elvis Opee Ndayara & Another v Republic

Court of Appeal
23 January 2015
KKKihara KariukiPKP. O. KiageJMJ. Mohammed
1,930 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 confirmed death sentences for a Kshs. 58 million robbery, ruling that minor charge discrepancies and even a prosecutor's concession cannot overturn sound convictions.

What this practically means

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Executive summary

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The two appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code for the theft of Kshs. 58 million from a Forex Exchange Bureau director at Hazina Towers, Nairobi, on 24th June 2006, and sentenced to death. A co-accused, Ahmed Sheriff Salah, succeeded in the High Court, whose appeals against conviction were allowed, but the High Court upheld the convictions and sentences of the 1st and 2nd appellants. On second appeal, the appellants alleged a variance between the charge and the evidence, reliance on circumstantial and unreliable evidence, and failure to consider their defences. Notably, the Director of Public Prosecutions did not oppose the appeal, submitting that major discrepancies rendered the convictions unsafe and that two prosecution witnesses were neither sworn nor affirmed. The Court of Appeal held that it was not bound by counsel's views and independently reassessed the evidence. It found the discrepancies minor and non-prejudicial, the identification evidence credible given the well-lit basement, and the appellants' unexplained sudden wealth - motor vehicles, cash and household goods purchased shortly after the robbery - probative of involvement, invoking their probative burden under section 111 of the Evidence Act. Applying the principle that a second appellate court is bound by concurrent findings unless no reasonable tribunal could reach them, the Court dismissed both appeals and confirmed the death sentences.

Key legal issues

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01

Effect of variances between charge sheet and evidence

Holding

Minor discrepancies in the charge (sum stated in Kshs. equivalent of foreign currency; complainant's name mis-spelt) do not vitiate convictions where no prejudice is caused.

Reasoning

The court held the High Court properly found no discrepancy since the value of the currency was consistent with the sum charged. The mis-spelling of the complainant's name was minor. The evidence against the appellants remained cogent and clear, so the discrepancies caused no prejudice and could not render the convictions unsafe.

p. 4
02

Scope of second appellate court's review of concurrent findings

Holding

The Court will not disturb concurrent findings of fact unless no reasonable tribunal could have reached them on the evidence.

Reasoning

Sitting as a second appellate court, the Court defers to concurrent findings of the trial court and first appellate court, intervening only where the findings are ones no reasonable tribunal could reach on the record. Both lower courts had found the appellants' defences false and the identification evidence credible, so the findings stood.

p. 4
03

Probative burden on accused who testifies

Holding

An accused who testifies assumes a probative burden of explaining sudden acquisition of wealth under section 111 of the Evidence Act, though the burden of proving guilt remains on the prosecution throughout.

Reasoning

The burden of proving guilt beyond reasonable doubt lay on the prosecution and never shifted. But by testifying, the appellants assumed a probative burden of explaining their sudden wealth - motor vehicles, money and household goods - facts within their special knowledge. Their unexplained acquisitions shortly after the robbery supported their involvement.

p. 3

Legal principles established

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  • A second appellate court is bound by concurrent findings of the lower courts unless no reasonable tribunal could, on the evidence, reach those findings.
  • An appellate court is not bound by the views or concessions of State Counsel and must independently assess the propriety of a conviction and sentence.
  • An accused who testifies assumes a probative burden of explaining facts within his special knowledge, such as sudden acquisition of wealth, though the legal burden remains on the prosecution.

Court orders

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  1. 1.Both appeals dismissed
  2. 2.Sentences of death imposed by the trial court confirmed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Evidence Actsection 111

Cases cited (2)

  • Norman Ambich Miero & Another v Republic
    [2012] eKLR (Criminal Appeal No. 279 of 2005)

    Duty of appellate court to reassess evidence and not be bound by State Counsel's views.

  • P. K. W. v Republic
    [2012] eKLR (Criminal Appeal No. 186 of 2010)

    Second appellate court bound by concurrent findings unless no reasonable tribunal could reach them.

On appeal from
High Court of Kenya at Nairobi
HC. Cr. A. No. 169 of 2008
Jurisdiction invoked
Second appeal under the Criminal Procedure Code (Court of Appeal's appellate jurisdiction over High Court criminal appeals)

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, "Elvis Opee Ndayara & Another v Republic", Case Analysis (2015). Criminal Appeal No. 125 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/988/eng@2015-01-23

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