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Court of AppealAllowedCriminal Appeal No. 62 of 2014· [2016] KECA 680 (KLR)

Ireri v Republic (Criminal Appeal 68 of 2014) [2016] KECA 680 (KLR)

Court of Appeal of Kenya
6 April 2016
PWP. N. WakiPKP. O. KiageSKS. Ole Kantai
2,563 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a firearm conviction, ruling you cannot be found in possession of a weapon based only on a co-accused's uncorroborated statement.

What this practically means

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Executive summary

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This Court of Appeal at Nyeri (Waki, Kiage and Ole Kantai JJA) allowed a second appeal against conviction for being in possession of a firearm without a firearm certificate contrary to Section 4(1) as read with Section 4(3) of the Firearms Act, Cap 114. The appellant and a co-accused, Njiru, were arrested when community policing members and an Assistant Chief found an air rifle in a sack carried by Njiru; each accused blamed the other. The trial court convicted both, and the High Court dismissed the appeal on the firearm count while reducing the sentence to five years, though it allowed the appeal on the count of preparation to commit a felony. Two issues of law were framed: the legal definition of possession, and the legal effect of an exculpatory extra-judicial statement by one accused against another. The court restated the statutory definition of possession covering actual and constructive possession, but found the findings of possession by the courts below not strictly borne out by the evidence. It further held, following Anyangu v Republic and Joseph Odhiambo v Republic, that an exculpatory extra-judicial statement by one accused cannot be used against a co-accused, and that co-accused evidence is of the weakest kind, incapable of supporting a conviction without corroboration. The conviction was quashed, the sentence set aside, and the appellant ordered released forthwith unless otherwise lawfully held.

Key legal issues

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01

Definition and scope of 'possession' under the Firearms Act

Holding

Possession under Section 2 of the Firearms Act (lifted from Section 4 of the Penal Code) covers actual physical possession and constructive possession, including joint possession with knowledge and consent. However, on the facts there was no evidence that the appellant was in either actual or constructive possession of the rifle.

Reasoning

The court extracted the statutory definition of possession and noted it had been construed in numerous decisions as covering actual physical and constructive possession. Applying it, the court found the appellant was not in actual physical possession, and that the evidence of the arresting witnesses did not establish knowledge or consent by the appellant such as would ground constructive or joint possession.

p. 3
02

Legal effect of an exculpatory extra-judicial statement by one accused against a co-accused

Holding

Such a statement is evidence only against its maker, is not a confession, and cannot be used as evidence against a co-accused. Even if it were a confession implicating a co-accused, it is evidence of the weakest kind incapable of supporting a conviction without corroboration.

Reasoning

Relying on Anyangu v Republic and Joseph Odhiambo v Republic, the court held that a statement not amounting to a confession binds only its maker; a co-accused may implicate another to save himself, so such evidence is of the weakest kind. Njiru's statement implicating the appellant was exculpatory and extra-judicial and could not found the appellant's conviction.

p. 5
03

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

A second appeal lies on issues of law only; concurrent findings of fact by the two courts below deserve respect and will not be disturbed unless based on no evidence or a perversion of the evidence.

Reasoning

The court invoked Section 361 of the Criminal Procedure Code and adopted Christopher Nyoike Kangethe v Republic on the limited jurisdiction of a second appellate court. It then re-evaluated the evidence and found the lower courts' possession findings not borne out by the record, which was a question of law on the application of the statutory definition.

p. 3

Legal principles established

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  • An exculpatory extra-judicial statement by one accused cannot be used as evidence against a co-accused.
  • The evidence of a co-accused is of the weakest kind and incapable of supporting a conviction without corroboration.
  • Under the Firearms Act and Penal Code definitions, possession includes both actual physical possession and constructive possession, and where two or more persons with knowledge and consent have something in custody it is deemed in the possession of each and all of them.
  • A second appellate court will not disturb concurrent findings of fact unless there are compelling reasons, namely that no reasonable tribunal could on the evidence have arrived at such findings or that the findings were perverse.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction of the appellant on the charge of possession of a firearm without a firearm certificate quashed
  3. 3.Sentence of 5 years imprisonment imposed by the High Court set aside
  4. 4.Appellant to be set at liberty forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Embu
Criminal Appeal No. 154 of 2011
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 (2)

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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, "Ireri v Republic (Criminal Appeal 68 of 2014) [2016] KECA 680 (KLR)", Case Analysis (2016). Criminal Appeal No. 62 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/680/eng@2016-04-06

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