Thomas Ochieng Ajwang v Republic [1983] KECA 39 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that anyone caught with smuggled goods must show exemption documents in their own name, or the conviction stands.
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 prosecution proved that the appellant was in possession of the uncustomed goods
- 2.Whether the goods were dutiable/uncustomed
- 3.Whether the appellant knew or ought reasonably to have known that the goods were uncustomed
- 4.Whether the exemption forms produced by the defence established that duty had been paid or exempted
Key legal issues
#Ingredients of the offence of possession of uncustomed goods
The prosecution must prove possession, that the goods were dutiable, and knowledge or constructive knowledge that the goods were uncustomed; these were all established against the appellant.
Section 185(d)(iii) criminalises acquiring or possessing goods known, or which ought reasonably to be known, to be uncustomed. The courts below found possession on the appellant's own admission that he transported the cylinders to Kisumu, and the defence conceded that no customs duty had been paid. The appellant's defence line itself showed knowledge that the goods were uncustomed, so all ingredients were proved.
Evidential burden on an accused raising exemption
An accused who produces documents to prove exemption, being a matter specially within his knowledge, must show that those documents relate to him; this is an evidential burden only, not a burden of proving innocence.
The exemption forms produced by the defence were not in the appellant's name and contained alterations, so the trial magistrate was entitled to reject them. The magistrate considered the forms together with the whole evidence without placing any burden of proof on the appellant, and no contrary suggestion was made on appeal.
Possession of goods transported by another
The appellant was properly found to have been in possession of the cylinders notwithstanding that, on seizure, they were stored with Musembi pending transportation to Nairobi.
Although the cylinders were seized at the MPS transport company office in the custody of Musembi, who had stored them pending transportation to Nairobi, the appellant had admitted transporting them to Kisumu, which supported the finding of possession for purposes of the offence.
Legal principles established
#- To secure a conviction under section 185(d)(iii) of the Customs and Excise Act, the prosecution must prove possession of the goods, that the goods were dutiable, and that the accused knew or ought reasonably to have known they were uncustomed.
- Where an accused produces evidence of a matter specially within his knowledge, he bears an evidential burden to show that the evidence relates to him, without any burden of proving innocence.
Court orders
#- 1.The appeal to the Court of Appeal is dismissed
- 2.The conviction and sentence imposed by the trial magistrate, as affirmed by the High Court, stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in a criminal matter (statutory appellate jurisdiction; no specific provision quoted in the judgment)
Relief refused
#Appeal against conviction for possession of uncustomed goods
The offence was proved against the appellant as required by law
Costs
No costs order 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 case against the appellant was therefore proved as required by law and we order this appeal to be dismissed.
That a) the accused was in possession of the goods, b) the goods were dutiable, c) he knew or ought reasonably to have known the goods were uncustomed ie duty had not been paid.
Being a criminal case the appellant did not have to prove his innocence but he produced evidence, the forms, which were a matter specially within his knowledge.
Issues in the judgment
#Possession finding sits uneasily with the judgment's own statement that at seizure the cylinders were not in the appellant's possession but stored with Musembi at the MPS transport company office; the judgment nonetheless affirms conviction on possession.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Ochieng Ajwang v Republic [1983] KECA 39 (KLR)", Case Analysis (1983). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/39/eng@1983-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.