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Supreme CourtAllowedPetition 39 of 2018

Republic v Ahmad Abolfathi Mohammed & another

Supreme Court of Kenya
15 March 2019
David Kenani MaragaD. K. MaragaMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
18,087 words in judgment
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·~72 min to read original · ~4 min brief

The bottom line

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Supreme Court reinstates terrorism conviction, ruling admissions leading to evidence are admissible but need corroboration.

What this practically means

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The Supreme Court overturned the Court of Appeal's decision that had freed two Iranian men convicted of possessing 15kg of explosives. The Court ruled that when a suspect leads police to evidence, that act can be used as an admission in court. However, such an admission alone cannot secure a conviction; it must be supported by other evidence. In this case, the admission was backed by strong circumstantial evidence, including repeated visits to the spot where the explosives were buried.

Executive summary

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The Supreme Court allowed the State's appeal against the Court of Appeal's decision that had acquitted two Iranian nationals convicted of terrorism-related offences involving 15kg of RDX explosive. The respondents had been convicted by the trial court and their conviction upheld by the High Court, but the Court of Appeal quashed the conviction, holding that information from a suspect leading to discovery of evidence was inadmissible outside a confession under section 25A of the Evidence Act, and that the circumstantial evidence was insufficient. The Supreme Court reversed the Court of Appeal, holding that admissions made by a suspect during investigations that do not amount to confessions are admissible in evidence, though they cannot alone found a conviction and require corroboration. The court distinguished between confessions (direct acknowledgements of guilt) and admissions (statements from which guilt may be inferred), finding that the 1st respondent's act of leading police to the RDX was an admission of possession. The court further held that there is no conflict between sections 25A and 111(1) of the Evidence Act as they address different scenarios. On the circumstantial evidence, the court found that the respondents' repeated visits to the isolated spot at Hole No. 9, their failure to visit tourist sites, and their early departure, combined with the admission, formed a complete chain pointing to guilt. The court restored the convictions and sentences, ordering the respondents to serve the remainder of their imprisonment terms before repatriation. Justices Ibrahim and Wanjala dissented, arguing the circumstantial evidence was insufficient due to the open nature of the golf course.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether, despite the repeal of section 31 of the Evidence Act, information given to the Police by a suspect leading to discovery of material evidence and such discovered evidence is admissible under the provisions of section 111(1) of the Evidence Act;
  2. 2.whether information given to the Police by a suspect leading to discovery of material evidence in a case is admissible only under section 25A of the Evidence Act;
  3. 3.whether the Court of Appeal erred in equating evidence proceeding from a suspect leading to discovery with a confession under section 25A of the Evidence Act.
  4. 4.whether there is an apparent conflict between sections 25A and 111(1) of the Evidence Act;
  5. 5.whether the Court of Appeal's decision in this case will hamper Police investigations and render detection of crime impossible;
  6. 6.whether the respondents' conviction was based purely on circumstantial evidence and if so, whether the circumstantial evidence on record in this case unerringly pointed to the guilt of the respondents.

Key legal issues

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01

Admissibility of information from a suspect leading to discovery of evidence after repeal of section 31 of the Evidence Act

Holding

Such information is admissible as an admission, not a confession, and may be proved in evidence but cannot alone sustain a conviction; it requires corroboration.

Reasoning

The court distinguished between a confession (direct acknowledgement of guilt) and an admission (statement from which guilt may be inferred). It held that the repeal of section 31 did not render all such information inadmissible. While section 25A governs confessions, admissions that do not meet its strict requirements are still admissible but cannot be the sole basis for conviction. The court found that the 1st respondent leading police to the RDX was an admission of possession, which was corroborated by circumstantial evidence.

p. 18
02

Whether the conviction was based purely on circumstantial evidence

Holding

The conviction was not based purely on circumstantial evidence; it was partly based on the 1st respondent's admission of possession by leading police to the RDX, which was corroborated by circumstantial evidence.

Reasoning

The court found that the 1st respondent's act of leading police to the spot where the RDX was recovered constituted an admission of possession. This admission, combined with circumstantial evidence such as the respondents' repeated visits to the isolated spot at Hole No. 9, their failure to visit any tourist sites, and their early departure from the hotel, formed a complete chain pointing to guilt. The court held that the Court of Appeal erred in treating the case as resting solely on circumstantial evidence.

p. 19
03

Whether the circumstantial evidence was sufficient to sustain the conviction

Holding

The circumstantial evidence on record unerringly pointed to the respondents' guilt and was inconsistent with their innocence.

Reasoning

The court reviewed the evidence of PW7 (taxi driver), PW14 (golfer), and PW13/PW17 (police officers). It noted that the respondents visited Hole No. 9 at least three times, including at dusk on the day before the RDX was recovered. They were first-time visitors to Kenya who did not visit any tourist sites. The golf course was open, but the respondents' repeated visits to that specific isolated spot, combined with their early departure and the 1st respondent leading police to the exact location, created a complete chain of evidence. The court found no evidence that anyone else had planted the RDX there.

p. 24

Legal principles established

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  • An admission by a suspect that does not meet confession rules is still admissible but cannot alone support a conviction.
  • Section 111(1) of the Evidence Act applies at trial, not during police investigations.
  • There is no conflict between sections 25A and 111(1) of the Evidence Act; they cover different situations.
  • Circumstantial evidence can sustain a conviction if it forms a complete chain pointing to guilt.
  • Leading police to discover evidence can be treated as an admission of possession or involvement.

Court orders

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  1. 1.This appeal is hereby allowed.
  2. 2.The judgment and orders of the Court of Appeal made on January 28, 2018 are hereby set aside.
  3. 3.The conviction by the trial court of the respondents and the High Court decision are hereby affirmed.
  4. 4.The respondents shall serve the remainder of their imprisonment term after which they shall be repatriated to their country.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
dissenting

Wrote the judgment

Justice Ibrahim dissented, holding that the Court of Appeal correctly found the chain of circumstantial evidence was broken because the golf course was open and accessible, creating reasonable doubt. He disagreed with the majority's reliance on section 111 of the Evidence Act and found the evidence insufficient to sustain a conviction.

I therefore find no difficult in disagreeing with the Majority in their regarding the evidence on record as conclusive under section 111. The evidence was purely circumstantial which I find not enough to prove the case as against the respondents to the required standard, which is proof beyond reasonable doubt.p. 31
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
dissenting

Wrote the judgment

Justice Wanjala dissented, arguing that sections 25A and 111(1) of the Evidence Act deal with different legal scenarios and are not in conflict. He found the circumstantial evidence insufficient to prove guilt beyond reasonable doubt due to the open nature of the golf course, and would have dismissed the appeal.

My understanding of these two sections means that section 25A does not oust or in any way revise the provisions of section 111(1) of the Evidence Act. It also means that the provisions of section 111(1) cannot be applied to create an exception to the provisions of section 25A of the Evidence Act. There can be no conflict between the two, since they deal with different legal scenarios.p. 36
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Criminal Appeal No. 135 of 2016
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That act of the 1st respondent leading the Police to the Mombasa Golf Club where the RDX explosive was discovered was an admission of the respondents' possession of that explosive. That being our view, it follows therefore, and we find that the Court of Appeal erred in holding that the respondents' conviction was based solely on circumstantial evidence.
p. 19 Admission by conduct leading to discovery
We thus find that, considered alone, the circumstantial evidence on record in this case nonetheless unerringly points to the respondents as the people who planted the RDX explosive at the scene where it was dug out.
p. 24 Sufficiency of circumstantial evidence

Key timeline

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Before 2018
Trial court convicts Ahmad Abolfathi Mohammed and another for terrorism offences involving 15kg of RDX explosive.
Before 2018
High Court upholds the conviction.
2018-01-28
Court of Appeal quashes the conviction, ruling information leading to discovery is inadmissible outside a confession.
2019
Supreme Court allows the State's appeal, reinstates conviction, and orders respondents to serve remaining prison term then be repatriated.

Practical implications

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For lawyers

Admissions vs confessions clarified

When defending clients, distinguish between a confession (direct guilt admission under section 25A) and an admission (inferential statement). Admissions from leading to evidence are now clearly admissible but require corroboration. Challenge the weight, not admissibility. Use this to argue for corroboration if the prosecution relies solely on such evidence.

For businesses

Security cooperation with police

If your business premises are used in criminal investigations, employees may be asked to lead police to evidence. This judgment confirms that such cooperation can be used as evidence. Ensure staff understand their rights and that any statements or actions may be admissible. Consult legal counsel before voluntarily assisting investigations beyond basic cooperation.

For individuals

Your actions can be used in court

If you are a suspect and you voluntarily show police where evidence is hidden, that act can be used as an admission against you in a Kenyan court. It is not a full confession, but it can help convict you if combined with other evidence. Always ask for a lawyer before speaking or acting during police questioning.

Frequently asked questions

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Can police use information I give them that leads to evidence in Kenya?+

Yes, the Supreme Court ruled that such information is admissible as an admission. However, it cannot be the only basis for a conviction; the prosecution must provide additional evidence to support it.

What is the difference between a confession and an admission in Kenya?+

A confession is a direct acknowledgment of guilt made under strict rules (section 25A Evidence Act). An admission is a statement or action from which guilt can be inferred, like leading police to evidence. Admissions are easier to admit but need corroboration.

Can I be convicted solely on circumstantial evidence in Kenya?+

Yes, if the circumstantial evidence forms a complete chain that points unerringly to your guilt and is inconsistent with any other reasonable explanation. The Supreme Court upheld this principle in the Ahmad Abolfathi case.

What happened in the Ahmad Abolfathi Mohammed case in Kenya?+

Two Iranian nationals were convicted for possessing 15kg of RDX explosive. The Court of Appeal freed them, but the Supreme Court reinstated the conviction. The Court ruled that leading police to the explosives was an admission, and combined with other evidence, it proved guilt.

Later judgments citing this (9)

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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, "Republic v Ahmad Abolfathi Mohammed & another", Case Analysis (2019). Petition 39 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/48/eng@2019-03-15

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