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Court of AppealPartially AllowedCriminal Appeal No. 191 of 2017· [2020] KECA 99 (KLR)

Abdulkadir Anod Dole v Republic [2020] KECA 99 (KLR)

Court of Appeal
4 December 2020
3,630 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 upheld convictions for possessing rhino horns after a warrantless search, but quashed a forgery conviction for lack of evidence.

What this practically means

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Executive summary

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This was a second appeal, consolidated from HCCR No. 45 of 2017 and HCCR No. 46 of 2017, against the High Court's confirmation of the appellants' convictions and consecutive sentences at the Nanyuki Chief Magistrate's Court for being in possession of government trophies (two rhinoceros horns and elephant ivory), implements of forgery, and counterfeit Ethiopian currency. Counsel argued three grounds: illegality of the warrantless search of the appellants' house as a violation of Article 31 of the Constitution; failure to prove the offence of possession of trophies, including the element of ownership by certificate and the impracticality of finding joint possession; and excessive sentence. The Court of Appeal (Ouko, P, Karanja and Asike-Makhandia, JJ.A) held in a single judgment that the right to privacy, not being one of the non-derogable rights under Article 25, was limitable, and that the search was authorized by section 22(1) of the Criminal Procedure Code, section 49 of the repealed Wildlife (Conservation and Management) Act and section 20 of the Police Act, with exceptional circumstances justifying the warrantless raid. Applying the Penal Code definition of possession, the Court upheld the convictions on the trophy and currency counts, declining to disturb concurrent findings of fact on a second appeal. However, it quashed the conviction on the count of possessing implements of forgery, holding that printer cartridges and a paper cutter per se are not instruments of forgery absent evidence linking them to a forgery. The appeal was therefore partially allowed: the conviction and sentence on that count were set aside and the rest of the appeal dismissed.

Key legal issues

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01

Legality of warrantless search of a dwelling house under Article 31 of the Constitution

Holding

The search did not infringe the right to privacy; it was authorized by section 22(1) of the Criminal Procedure Code, section 49 of the Wildlife (Conservation and Management) Act and section 20 of the Police Act, and exceptional circumstances justified it.

Reasoning

The right to privacy, unlike the rights under Article 25, is limitable. Statutes authorized entry and search without a warrant where there were reasonable grounds to believe an offence had been committed and in exceptional circumstances. Reasonableness is assessed case-by-case, weighing privacy interests against the needs of law enforcement. The exigencies of tracking rhino horns and the recovery of trophies hidden in the house made the warrantless search imperative and permissible.

p. 4
02

Proof of possession of government trophies

Holding

Possession was proved; concurrent factual findings that the house and its extension were owned and controlled by the appellants could not be disturbed on second appeal.

Reasoning

Neither the repealed nor the current Wildlife Act defines possession, but the courts rely on section 4 of the Penal Code, which includes knowingly having items in one's custody or, with knowledge and consent, items in the custody of any of two or more persons. The lease defence failed because it had expired and related to different premises. Government trophies were retrieved from the appellants' house and the officers were led to the rooms where the exhibits were found.

p. 4
03

Sufficiency of evidence on possession of implements of forgery (count 4)

Holding

The conviction on count 4 was unsupportable; the implements must be linked to a forgery and no evidence did so.

Reasoning

Section 367(b) of the Penal Code criminalizes making, using or knowingly having custody or possession of any frame, mould or instrument for making forged paper. Mere possession of five colour printer cartridges and one paper cutter cannot constitute the offence; the instrument must be linked to a forgery. Not an iota of evidence proved this charge, and the learned Judge erred in failing to so find. The conviction was therefore quashed and the sentence set aside.

p. 4
04

Jurisdiction over severity of sentence on second appeal

Holding

The Court had no jurisdiction over the severity of sentence, only over illegality of sentence; the discretion on sentence was properly exercised.

Reasoning

By dint of section 361(1) of the Criminal Procedure Code, severity of sentence is outside the second appeal except where illegality is alleged. An appellate court will not easily interfere unless the sentence is manifestly excessive, a material factor was overlooked, wrong material was taken into account, or a wrong principle was applied. The High Court had, however, correctly noted that the sentences on counts arising from the same transaction ought to have run concurrently, but the overall discretion was not improperly exercised.

p. 4

Legal principles established

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  • The reasonableness of a warrantless search is decided case-by-case, weighing privacy interests against the reasonable needs of law enforcement; a search of a dwelling without a warrant is permissible in exceptional circumstances
  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong
  • Possession of government trophies may be established under the Penal Code definition of possession, including joint possession with knowledge and consent; it is not impractical to convict multiple occupants of a house in which trophies are found
  • An appellate court will not easily interfere with sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle
  • A charge of being in possession of implements of forgery under section 367(b) of the Penal Code requires evidence linking the implements to an intended forgery; possession of printer cartridges and a paper cutter per se is not an offence

Court orders

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  1. 1.Appeal against conviction and sentence on count 4 (being in possession of implements of forgery contrary to section 367(b) of the Penal Code) allowed; conviction on count 4 quashed and the sentence thereon set aside
  2. 2.Rest of the appeal dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 31(a); Article 25; Article 50(2)(a)
  • Wildlife (Conservation and Management) Act (repealed)section 42(1)(b) as read with section 52(1); section 49; section 49(2)(b); section 43(1)(b); section 39(3)(a) and (b)
  • Penal Codesection 367(b); section 367(e); section 4
  • Criminal Procedure Codesection 22(1); section 200(3); section 361; section 361(1)
  • Police Act Cap 84 (repealed)section 20

Cases cited (4)

  • Standard Newspapers Limited & Another vs. Attorney General & 4 Others
    (2013) eKLR
  • Jean Wanjala Songoi vs. R.
    (2015) eKLR
  • Karani vs. R
    [2010] 1 KLR 73
  • Bernard Kimani Gacheru v. Republic
    Cr. App. No. 188 of 2000
On appeal from
High Court of Kenya at Nanyuki
HCCR No. 45 of 2017
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code

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, "Abdulkadir Anod Dole v Republic [2020] KECA 99 (KLR)", Case Analysis (2020). Criminal Appeal No. 191 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/99/eng@2020-12-04

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