NOBERT OLUOCH OBANDA vs REPUBLIC [1983] KECA 83 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a police chief counts as a public servant under anti-corruption law, and second appeals can't revisit facts or lawful sentences.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether on a second appeal the convictions could be disturbed, the appeal being limited to matters of law under section 361(1) of the Criminal Procedure Code
- 2.Whether Obanda was a 'public servant' and an officer of a 'public body' within section 2 of the Prevention of Corruption Act (Cap 65) as head of the Interpol section of the Kenya CID
- 3.Whether the magistrate and High Court judges properly treated Steyn as an accomplice and whether his evidence was properly corroborated
- 4.Whether the tape-recording, transcript and related paraphernalia were properly admitted and used in evidence
- 5.Whether the alternative count of demanding with menaces under section 302 of the Penal Code could properly be joined with the corruption counts on one charge sheet
- 6.Whether the sentence was lawful and open to interference by this court
Key legal issues
#Scope of a second criminal appeal
The Court of Appeal on a second appeal may deal only with matters of law and cannot interfere with lawful sentences
The court invoked section 361(1) of the Criminal Procedure Code to confine itself to questions of law. Convictions rested on findings of fact and credibility by the magistrate and affirmed by the High Court, which the second appellate court could not revisit. Since the total four-year sentence was lawful, no interference was possible regardless of the appellant's submissions.
Status of the appellant as a public servant or officer of a public body
As a Kenya CID officer heading the Interpol section, answering questions addressed to the Director of the Kenya CID, the appellant was a public servant and officer of a public body under section 2 of the Prevention of Corruption Act
The court rejected the argument that as regional Interpol chief the appellant acted independently of the Kenya Police. He was a Kenya CID officer, could not hold the Interpol post unless he were, and the matters investigated concerned a Kenyan-registered aircraft. The evidence of his deputy was not challenged in cross-examination on the section's dependence on the CID.
Accomplice evidence and corroboration
Steyn was a real accomplice for the Kshs 7,000 count and a statutory accomplice for the Kshs 3,000 count, and corroboration was properly sought and found
Following Kichingeri v R and Canisio Walwa v R, this was not a case where the circumstances justified acting on uncorroborated accomplice evidence. Reports made by Steyn to police officers were not corroboration but showed consistency. Corroboration lay in the recorded conversation of July 3, the appellant's flight from pursuing colleagues, and the bundles of notes found in his car.
Admissibility and use of tape-recorded evidence
The recording, transcript and translation were properly admitted and used as an aide memoire, the court endorsing the test in The Queen v Raojibhai Girdharbai Patel
A proper foundation was laid: evidence that the machine worked properly, identification of the recorded voices by witnesses familiar with them (Sokhi and Rowe), Steyn's identification of his own voice, and the appellant's failure to deny his voice was recorded or challenge the transcript. The court endorsed the Patel principle that voice identification should be by a familiar witness, not by the magistrate or judges themselves.
Joinder of the corruption counts with the alternative demanding-with-menaces count
The joinder was proper because a sufficient nexus existed and no special features prejudiced or embarrassed the accused; the point was abandoned below
Applying section 135 of the Criminal Procedure Code and R v Kray and R v Ludlow, offences may be joined where evidence of one is admissible in the trial of the other or where they exhibit similar features. Severance is discretionary where joinder is prejudicial or the charges numerous or complicated. Here neither applied, and the appellant's advocate had raised and then abandoned the objection at trial and in the High Court.
Alternative count of demanding with menaces proved but no conviction entered
The magistrate's course of finding the charge proved beyond reasonable doubt without convicting on the alternative count was correct
Where an alternative count is subsumed by conviction on the primary count, the correct course is to record the finding of proof without entering a conviction on the alternative. The High Court judges so declared and the Court of Appeal agreed, though no conviction or sentence rested on that count.
Legal principles established
#- On a second appeal to the Court of Appeal in a criminal matter, the court deals only with matters of law and cannot interfere with lawful sentences
- Where an accomplice's evidence requires corroboration, reports he made to third parties are hearsay and not corroboration, though they may show consistency
- A tape-recording, cassette, transcript and translation are admissible as an aide memoire for witnesses provided a proper foundation is laid for the accuracy of the machine and the identification of the recorded voices
- Joinder of different offences on one charge sheet is permissible where a sufficient nexus exists, such as where the evidence of one offence is admissible in the trial of the other; severance lies in the magistrate's discretion
- A police officer heading the Interpol section of the Kenya CID is a public servant and an officer of a public body within the Prevention of Corruption Act
Court orders
#- 1.Appeal against both conviction and sentence dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- null
- Jurisdiction invoked
- Section 361(1) Criminal Procedure Code (Cap 75) - second appeal confined to matters of law
Relief refused
#Appeal against the three corruption convictions
Findings of the magistrate and High Court on the credibility of witnesses and corroboration were sound and raised no matter of law warranting interference
Appeal against sentence
The sentences were lawful and on a second appeal the court could not interfere with them
Claim that the trial was tainted by a paid magistrate, police conspiracy and machinations of unnamed Kenyans
The allegations were unsupported by any evidence or too vague to consider
Costs
No costs order is stated 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.
So far as the convictions are concerned, because this is a second appeal, it is only matters of law with which we can deal and because the sentences were lawful we cannot interfere with them. Section 361(1) Criminal Procedure Code.
The magistrate and judges were right to find Obanda was at the relevant time a public servant and an officer of a public body within the meanings ascribed to them in Section 2 of the Prevention of Corruption Act (Cap 65).
Steyn's report about Obanda to Endo Ngula, Sokhi, Maragua and Kariuki were hearsay and not corroboration but they showed consistency.
This was not a case where the circumstances and relation of the accomplice to the offence justified the magistrate in acting upon Steyn's evidence without corroboration.
Two different offences may constitute a series and their joinder is possible even if they do not arise out of the same acts or from part of a system of conduct but one requirement is that a sufficient nexus must exist.
At the end of all this, thereof re, we have to say this appeal must be dismissed and that is the order of this court.
Issues in the judgment
#The judgment states inconsistent amounts for the third count - Kshs 5,000 in the summary of the charges but Kshs 3,000 in the court's restatement of the Republic's case and in its accomplice analysis
The judgment elsewhere records the same payment as Kshs 3,000
The case list gives the Wanjeri citation as 1 EACA 93 in the heading list but 11 EACA 93 in the body of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NOBERT OLUOCH OBANDA vs REPUBLIC [1983] KECA 83 (KLR)", Case Analysis (1983). Criminal Appeal 62 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/83/eng@1983-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.