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High CourtPartially AllowedCriminal Appeal No 604 of 1988 (consolidated with Criminal Appeal No 605 of 1988)

First Appellant (Criminal Appeal No 604/88) & Second Appellant (Criminal Appeal No 605/88) v Republic

High Court of Kenya
9 June 1989
EGE.M GITHINJI
1,444 words in judgment
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The bottom line

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Kenya's High Court upheld a theft conviction based on recently stolen goods, but freed a co-accused because there was no real evidence against him.

What this practically means

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Executive summary

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Two consolidated first appeals from the Principal Magistrate's Court at Mombasa (Criminal Case No 2022 of 1988, Manyasi Ag RM) against convictions for burglary and stealing contrary to sections 304(2) and 279(b) of the Penal Code and possession of an offensive weapon. The complainant's house was broken into on the night of 29/6/88 and household goods stolen; on 30/6/88 at about 4 pm some stolen items were recovered in the first appellant's house. Githinji J rejected the first appellant's explanation that the second appellant had brought the goods to him, noting the impossible date of 31/6/88, the impossibility of delivery before the theft, the incredible evidence of DW1, and the inconsistency with statements to prosecution witnesses that he had bought the goods. The doctrine of recent possession - recovery less than 24 hours after the theft - sustained his conviction for burglary and stealing, and the 2½-year sentence was not excessive. However, the second appellant was convicted only on being found in the first appellant's house; an unsworn statement is not evidence against a co-accused, and once DW1's testimony fell, no case was proved. The offensive weapon charge was fundamentally defective: Legal Notice 264/63 contains no sections 11(1) or 56 and creates no offence, and even under the Public Order Act possession is an offence only in a street or public place, whereas the iron bar was found in a locked house. The first appellant's appeal succeeded only on the weapon count; the second appellant's appeals on both counts were allowed and he was ordered set at liberty.

Key legal issues

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01

Credibility of the first appellant's explanation of possession

Holding

Explanation rejected as false; the dates given were impossible and inconsistent with what he told prosecution witnesses

Reasoning

The first appellant claimed goods were delivered on 31/6/88, a non-existent date. Adjusting his defence placed delivery before the theft. DW1's evidence that goods were in the house 2-3 days also predated the theft. His claim of purchase from the second appellant contradicted his earlier statements to PW1 and PW3.

p. 2
02

Sufficiency of evidence against the second appellant

Holding

Conviction unsafe; mere presence in the first appellant's house, without knowledge or consent regarding the goods, proved nothing

Reasoning

The only evidence against the second appellant was that he was found in the first appellant's house. The co-accused's unsworn statement could not be used against him, and DW1's evidence, once discredited, left no case proved against him.

p. 3
03

Validity of the offensive weapon charge

Holding

Charge fundamentally defective; the cited Legal Notice provisions do not exist and create no offence

Reasoning

Legal Notice 264/63 contains no section 11(1) or section 56 and merely extends section 11 of the Public Order Ordinance throughout Kenya. Even under the Act itself, possession in a private locked house is not an offence, so the conviction could not stand.

p. 3

Legal principles established

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  • Recent possession of stolen goods shortly after a theft permits an inference of guilt
  • An unsworn statement of an accused is not evidence against a co-accused
  • A charge citing non-existent provisions of a Legal Notice that creates no offence is incurably defective
  • Possession of an offensive weapon under section 11(1) of the Public Order Act is an offence only in a street or public place

Court orders

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  1. 1.Appeal of the first appellant against conviction and sentence for burglary and stealing dismissed
  2. 2.Conviction of the first appellant for being in possession of an offensive weapon quashed and sentence set aside
  3. 3.Appeals of the second appellant on both counts allowed; convictions quashed and sentences set aside
  4. 4.Second appellant to be set at liberty forthwith unless lawfully held for another offence
On appeal from
Principal Magistrate's Court at Mombasa
Criminal Case No 2022 of 1988
Jurisdiction invoked
First appellate jurisdiction over appeals from the Principal Magistrate's Court (criminal appeal against conviction and sentence)

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, "First Appellant (Criminal Appeal No 604/88) & Second Appellant (Criminal Appeal No 605/88) v Republic", Case Analysis (1989). Criminal Appeal No 604 of 1988 (consolidated with Criminal Appeal No 605 of 1988). Source:

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