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Court of AppealPartially AllowedCriminal Appeal No. 135 of 2016· [2018] KECA 743 (KLR)

Mohammed & another v Republic (Criminal Appeal 135 of 2016) [2018] KECA 743 (KLR)

Court of Appeal of Kenya
26 January 2018
PKP. Kihara KariukiKMK. M'inotiAMA. K. Murgor
8,155 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 two convictions for possessing explosives because key police evidence was obtained inadmissibly, freeing the accused after six years.

What this practically means

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Executive summary

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This was a second appeal by two Iranian nationals convicted by the trial magistrate on three counts - committing an act intended to cause grievous harm, preparing to commit a felony, and unlawful possession of explosives - after 15 kg of RDX was recovered buried at the Mombasa golf course. The High Court (Kimaru J.) dismissed their appeal against conviction but substituted the sentences with a consolidated 15-year imprisonment term. Before the Court of Appeal, the appellants challenged the sufficiency of the circumstantial evidence, the classification of RDX as an explosive, proof of possession, the fairness of the trial, and the sentence. The Court held that RDX is a blasting powder and hence an explosive under section 2 of the Explosives Act despite requiring a detonator, and that possession under section 4 of the Penal Code includes constructive possession, so neither ground availed the appellants. The fair-trial complaints also failed: all evidence relied on at trial had been disclosed, and Article 50(2)(j) does not confer a blanket right to police intelligence reports, while the torture claim was unsubstantiated and belated. The decisive ground was the inadmissibility of the information given by the 1st appellant that led the police to discover the RDX: section 31 of the Evidence Act was repealed in 2003 and never re-enacted, so such evidence is inadmissible outside a confession. Excluding it, the remaining circumstantial evidence - against a golf course accessible to the public - did not unerringly point to the appellants. The Court allowed the appeal, quashed the conviction and sentence, and ordered the appellants set at liberty and repatriated. It also clarified the meaning of taking into account pre-sentence custody under section 333(2) of the Criminal Procedure Code.

Key legal issues

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01

Whether RDX is an explosive under the Explosives Act

Holding

RDX is a blasting powder within section 2 of the Explosives Act; the need for a detonator does not exclude it from the definition.

Reasoning

Section 2 defines an explosive to include any substance used or manufactured with a view to producing a practical effect by explosion. The Government Chemist testified RDX is a powerful military explosive. Gunpowder and dynamite, expressly defined as explosives, also require igniting agents; a fuse or detonator is independently listed in section 2(b), so the ignited substance cannot be excluded from the definition.

p. 4
02

Whether the appellants were in possession of the RDX

Holding

Possession under section 4 of the Penal Code includes constructive possession, so physical possession is not required.

Reasoning

Section 4 defines possession to include knowingly having anything in the actual possession of another or in any place for one's own use or benefit. The court accepted the principle but found the appeal must still be allowed on the evidential weakness of the circumstantial case.

p. 4
03

Whether the right to fair trial under Articles 50(2)(j) and 50(4) was violated

Holding

No violation: all evidence relied on at trial was disclosed in advance, and the torture claims were unsubstantiated and belated.

Reasoning

The prosecution's duty of disclosure is continuous but extends only to the evidence it intends to rely on and any exculpatory material, not to police intelligence reports. The torture claim was fleeting, raised for the first time on appeal, uncorroborated, and contradicted by the 2nd appellant's praise of the police.

p. 5
04

Admissibility of information from an accused leading to discovery of evidence

Holding

The two courts below erred in admitting the evidence that the 1st appellant led police to the RDX, since section 31 of the Evidence Act was repealed in 2003.

Reasoning

Section 31 formerly allowed such evidence; the Criminal Law (Amendment) Act No. 5 of 2003 repealed it without re-enactment. The prosecution never alleged a confession, so the information leading to discovery of the RDX was inadmissible, and once excluded the remaining circumstantial evidence was too weak to sustain conviction.

p. 6
05

Whether the circumstantial evidence supported the conviction

Holding

Once the inadmissible discovery evidence is excluded, the remaining evidence did not unerringly point to the appellants' guilt.

Reasoning

The golf course was unfenced and accessible to the public, a strong co-existing circumstance capable of destroying the inference of guilt. No witness saw the appellants place or carry the RDX. The chain of circumstances was therefore incomplete.

p. 8
06

Whether the sentence should be disturbed

Holding

The 15-year consolidated sentence was not manifestly excessive, but the first appellate court misdirected itself by failing to take into account in a meaningful way the period spent in custody under section 333(2) of the Criminal Procedure Code.

Reasoning

Severity of sentence is a question of fact on second appeal and no error of principle was shown. The court noted the imposition of an omnibus sentence was an error but the appellants did not raise it. The failure to credit the pre-sentence custody period, however, was a misdirection.

p. 8

Legal principles established

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  • On a second appeal, the Court of Appeal considers only issues of law and must respect concurrent findings of fact unless they are unsupported by the evidence or based on a perversion of the evidence.
  • Following the repeal of section 31 of the Evidence Act by the Criminal Law (Amendment) Act, No. 5 of 2003, information from an accused person leading to the discovery of evidence is not admissible outside a confession.
  • RDX is a blasting powder and therefore an explosive within section 2 of the Explosives Act even though it requires a detonator or stimulus to produce a practical effect by explosion.
  • Possession under section 4 of the Penal Code encompasses both actual and constructive possession and does not require personal physical possession.
  • Article 50(2)(j) of the Constitution does not grant an accused a blanket right to access all information held by the police, including intelligence reports; the entitlement is to the evidence the prosecution intends to rely on and any exculpatory evidence.
  • Stating that a court has taken into account the period spent in custody while ordering the sentence to run from the date of conviction amounts to ignoring that period; 'taking into account' requires the sentence be reduced proportionately.
  • Circumstantial evidence must satisfy the three conditions in Abanga alias Onyango v Republic and must exclude all co-existing circumstances capable of weakening or destroying the inference of guilt.

Court orders

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  1. 1.Appeal allowed
  2. 2.Appellants' conviction and sentence quashed
  3. 3.Appellants set to liberty forthwith unless otherwise lawfully held
  4. 4.Upon being set to liberty, the appellants to be forthwith repatriated back to their country

Authorities

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Legislation

  • Penal Code (Cap. 63)section 231
  • Penal Code (Cap. 63)section 308(1)
  • Penal Code (Cap. 63)section 4
  • Penal Code (Cap. 63)section 38
  • Explosives Actsection 2
  • Explosives Actsection 29
  • Criminal Procedure Codesection 200
  • Criminal Procedure Codesection 361(1)(a)
  • Criminal Procedure Codesection 333(2)
  • Evidence Actsection 31
  • Evidence Actsection 25A
  • Evidence Actsections 26, 28 and 29
  • Constitution of Kenya, 2010Article 50(2)(j)
  • Constitution of Kenya, 2010Article 50(4)
  • Constitution of Kenya, 2010Article 29
  • Constitution of Kenya, 2010Article 25
  • Firearms Act (Cap. 114)definition of ammunition
  • Criminal Law (Amendment) Act, No. 5 of 2003section 102
  • Statute Law (Miscellaneous Amendments) Act No. 7 of 2007amendments to law on confessions
  • Evidence (Out of Court) Confession Rules2009

Cases cited (35)

  • Okeno v. Republic
    [1973] EA 31
  • Abanga alias Onyango v. Republic
    Cr. App. No 32 of 1990
  • Sawe v. Republic
    [2003] eKLR
  • Mary Wanjiku Chichira v. Republic
    Cr. App. No 17 of 1998
  • Idris Muktar & 20 Others v. County Government of Garissa & 7 Others
    [2016] eKLR
  • R v. Ward
    [1993] 2 All ER 557
  • Alister Anthony Pareira v. State of Maharashtra
    [2012] 2 SCC 748
  • Arthur Muya Muriuki v. Republic
    [2015] eKLR
  • Manohar v. The State of Madhya Pradesh
    Cr. App. No. 1275 of 1998
  • Lopchand Naruji Jat & Another v. State of Gujarat
    Cr. App. No. 580 of 1999
  • Ahmed Mohammed Ali v. Republic
    [1988] eKLR
  • Bakari Rashid alias Beka v. Republic
    Cr App No. 48 of 2015
  • Thomas Patrick Gilbert Cholmondeley v. Republic
    [2008] eKLR
  • R v. Taylor, Weaver & Donovan
    [1928] Cr. App. R. 21
  • Musili Tulo v. Republic
    Cr. App. No. 30 of 2013
  • GMI v. Republic
    Cr. Ap. No. 308 of 2011
  • Teper v. R.
    [1952] All ER 480
  • Musoke v. R.
    [1958] EA 715
  • Dhalay Singh v Republic
    Cr App. No. 10 of 1997
  • Karukenya & 4 Others v. Republic
    [1987] KLR 458
  • Thoya Kitsao alias Katiba v. Republic
    [2015] eKLR
  • Kennedy Otieno Odeny v. Republic
    [2008] eKLR
  • Joseph Maina Mwangi v. Republic
    CR. APP No. 73 of 1993
  • Kimeu v. Republic
    (2002) 1 KAR 757
  • Willis Ochieng Odero v. Republic
    [2006] eKLR
  • John Nyaga Njuki & 4 Others v. Republic
    Cr. App. No. 160 of 2000
  • Karingo v. Republic
    [1982] KLR 213
  • M'Riungu v. Republic
    [1983] KLR 455
  • Bernard Kimani Gacheru v. Republic
    Cr App No. 188 of 2000
  • Wanjema v. Republic
    [1971] E.A 493
  • Karanja v. Republic
    [1985] KLR 348
  • Ruhi v. Republic
    [1985] KLR 373
  • Majole v. R
    [1956] EACA 576
  • Martin Oduor Lengo & 2 Others v. Republic
    [2014] eKLR
  • Chrispine Kent Otieno v. Republic
    [2017] eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. Nos. 106 and 107 of 2013
Jurisdiction invoked
Second appeal under section 361(1)(a) of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Mohammed & another v Republic (Criminal Appeal 135 of 2016) [2018] KECA 743 (KLR)", Case Analysis (2018). Criminal Appeal No. 135 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/743/eng@2018-01-26

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