Esekon & another v Republic (Criminal Appeal 320 of 2018) [2024] KECA 262 (KLR)
The bottom line
#Kenya's Court of Appeal upheld robbery convictions but cut life sentences to 30 years, crediting time already spent in custody before trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the doctrine of recent possession was properly invoked
- 2.Whether the identity of the appellants was proved
- 3.Whether the prosecution failed to call certain critical witnesses and if so, whether such failure was detrimental to the prosecution case
Key legal issues
#Whether the doctrine of recent possession was properly invoked against the appellants
Yes. The 1st appellant was arrested in a nearby forest with recovery of an SFP connector and other items, and a memory card belonging to and containing pictures of PW5 was recovered from the 2nd appellant; neither gave a plausible explanation for possession of items recently robbed from the complainants.
The court recited the methodology from Sakwa v. Republic and the Canadian decision in Kowkyk: the prosecution must prove possession of recently stolen property, ownership by the complainant, that the items were stolen in the robbery, and recency; the inference of guilt is permissive, not mandatory, and does not apply where a reasonable explanation is offered. The appellants offered only denials, and the 'open forest' explanation was raised for the first time on appeal and never featured in their defence at trial. Both lower courts therefore correctly invoked the doctrine.
Whether the identity of the appellants was proved absent identification parades
Conviction could not properly rest on visual identification alone in the circumstances, as the complainants met the appellants for the first time during the robbery and no identification parades were held; however, the recent-possession evidence sufficiently connected the appellants to the robbery.
The court agreed with counsel that this was not a proper case for conviction based on identification, since first-time encounters during a daytime robbery would have required identification parades to confirm recognition. The investigating officer was not faulted because the witnesses encountered the appellants immediately after arrest, making parades valueless. Notwithstanding the absence of parades, the recovery of the complainants' recently stolen items from the appellants provided sufficient connecting evidence.
Whether the failure to call the police reservists who arrested the appellants was detrimental to the prosecution case
No. Section 143 of the Evidence Act requires no particular number of witnesses; the choice of witnesses lies with the prosecution, and the appellants failed to show what the uncalled witnesses would have clarified.
Relying on Julius Kalewa Mutunga and Omukanga, the court held that the prosecution need call only witnesses sufficient to prove the facts, and an adverse inference requires demonstration of an oblique motive visible on the record. The evidence adduced was sufficient to establish the charges, and the appellants did not identify gaps in the evidence that the reservists' testimony would have filled; all aspects the prosecution was required to cover were taken care of.
Whether the life sentences were appropriate
No. As first offenders who committed the offences in a single transaction, life imprisonment was too harsh; 30 years' imprisonment on each count, running concurrently, was substituted, running from 21st January 2013.
Although counsel gave little attention to sentence, the court found an issue of law arising on the legality/appropriateness of sentence in light of emerging jurisprudence on life sentences (Julius Kitsao Munyeso and Evans Nyamira Ayako). Acknowledging the appellants were armed with a rifle and used violence, the court nonetheless considered life imprisonment too harsh for first offenders and imposed 30 years per count concurrently, crediting pre-trial custody under the proviso to section 333(2) of the Criminal Procedure Code.
Legal principles established
#- On a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal's mandate is limited to matters of law only; matters of fact, including severity of sentence, are outside its purview, but questions on the legality of a sentence are matters of law.
- The ingredients of robbery with violence under section 296(2) of the Penal Code are disjunctive; proof of any one of being armed with a dangerous weapon, being in company with others, or using actual violence is sufficient to sustain a conviction.
- For the doctrine of recent possession, the prosecution must establish that the accused possessed recently stolen items belonging to the complainant, stolen during the robbery; where a reasonable explanation for possession is offered, the doctrine should not be invoked.
- Whether a witness should be called by the prosecution is a matter within the prosecution's discretion; the prosecution is obliged to call only such witnesses as are sufficient to establish the charge, and an appellate court will not interfere absent an oblique motive.
- A party seeking an adverse inference from the failure to call witnesses must identify the aspects of the case the uncalled witnesses would have illuminated and establish a link between them and the evidence; otherwise the complaint is mere speculation.
Court orders
#- 1.Appeal against conviction dismissed for lack of merit
- 2.Sentence of life imprisonment set aside
- 3.Each appellant sentenced to serve 30 years' imprisonment on each of the five counts, the sentences to run concurrently
- 4.Sentences to run from 21st January 2013, the date the appellants were first presented to the trial court, in accordance with the proviso to section 333(2) of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Quashing of the convictions on all five counts
The doctrine of recent possession was correctly invoked and the appeal against conviction lacked merit
Relief based on alleged failure to call police reservists as witnesses
The prosecution has discretion which witnesses to call and the appellants failed to show what the uncalled witnesses would have shed light on
Relief based on alleged material contradictions in the prosecution evidence
The contradictions were trivial and did not go to the root of the case
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the appeal against conviction is hereby dismissed for lack of merit. The appeal against sentence partially succeeds and the sentence of life imprisonment is hereby set aside. Each appellant is instead sentenced to serve 30 years' imprisonment on each of the five counts. The sentences will run concurrently.
Further, as the record shows that appellants were held in custody from 21st January 2013 when they were first presented to the trial court, their sentences, shall, in accordance with the proviso to section 333(2) of the Criminal Procedure Code, run from that date.
This being a second appeal, our mandate as prescribed under section 361(1) of the Criminal Procedure Code is limited to considering matters of law only.
Therefore, where a reasonable explanation is put forth, then the doctrine of recent possession should not be invoked.
these ingredients are disjunctive and the proof of any of the three ingredients is suficient to sustain a conviction.
It is so ordered.
Issues in the judgment
#The judgment states the appellants were charged with robbery with violence contrary to section 296(2) of the Penal Code, but paragraph 15 describes the charge as contrary to section 295 as read with section 296(2); a minor internal inconsistency in the description of the charging provision.
The citation for Chemagong v. Republic is printed as '[984] KLR 611', apparently a typographical error for [1984].
The judgment records the complainant in Count 1 as 'Kelvin Ondari' but later refers to him as 'Kevin Ondari', a minor spelling inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chemen v Republic (Criminal Appeal E121 of 2022) [2026] KECA 733 (KLR)[2026] KECA 733 (KLR)10 Apr 2026followed
Cite this brief
#Cite this brief
Caselaw, "Esekon & another v Republic (Criminal Appeal 320 of 2018) [2024] KECA 262 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/262/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.