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Court of AppealDismissedCriminal Appeal No 31 of 1983

THOMAS OCHIENG AJWANG vs REPUBLIC [1983] KECA 98 (KLR)

Court of Appeal
19 July 1983
624 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that anyone caught with smuggled goods must prove that any exemption documents they rely on actually belong to them.

What this practically means

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Executive summary

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The Court of Appeal (Kneller, Hancox and Chesoni, Ag JJA) dismissed this second appeal against conviction for being in possession of uncustomed goods contrary to Section 185(d)(iii) of the Customs and Excise Act (Cap 472). The appellant had been fined Kshs 8,000 (six months' imprisonment in default) after 68 gas cylinders were brought into Kenya from Uganda by boat and transported through Uyoma and Uholo market to Kisumu in his vehicle. The High Court (Patel J) had, on first appeal, upheld the conviction and fine but set aside the magistrate's forfeiture of the motor vehicle, correctly finding that the cylinders were not imported by the vehicle since they entered Kenya by boat. The Court of Appeal framed the ingredients of the offence as possession by the accused, dutiability of the goods, and knowledge that the goods were uncustomed. Possession and dutiability were proved, the duty having admittedly not been paid; the defence claim of exemption under Section 143 rested on forms that were not in the appellant's name and contained alterations. The court held that although an accused need not prove his innocence, evidence of a matter specially within his knowledge, such as exemption forms, must be shown to relate to him. The court inferred knowledge from the line of defence adopted and affirmed the decision of the High Court, dismissing the appeal.

Questions the Court framed

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

  1. 1.Whether the prosecution proved that the appellant was in possession of the uncustomed goods
  2. 2.Whether the goods were dutiable/uncustomed
  3. 3.Whether the appellant knew or ought reasonably to have known the goods were uncustomed
  4. 4.Whether the exemption forms tendered by the defence relieved the appellant of liability

Key legal issues

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01

Ingredients of the offence of possession of uncustomed goods under Section 185(d)(iii) of the Customs and Excise Act

Holding

The offence comprises proof of possession, dutiability of the goods, and knowledge that the goods were uncustomed; all were established against the appellant

Reasoning

The goods were brought into Kenya from Uganda by boat without payment of customs duty, were traced through Uyoma, Uholo market and Kisumu, and the appellant admitted transporting them to Kisumu. Though at seizure they were in the custody of Musembi pending onward transportation, the courts below found possession on the appellant's own admission, and the defence's own conduct showed knowledge that the goods were uncustomed.

p. 2
02

Burden of proof on an accused who raises an exemption claim as a matter specially within his knowledge

Holding

While the accused need not prove his innocence, where he tenders evidence of a matter specially within his knowledge (such as exemption forms) he must show that it relates to him

Reasoning

The exemption forms tendered by the defence were not in the appellant's name and contained alterations, so the magistrate was entitled to reject them. The magistrate considered the forms with the whole evidence without placing any burden of proof on the appellant, and no contrary suggestion was made on appeal.

p. 2
03

Effect of the High Court's setting aside of the forfeiture order

Holding

The High Court correctly set aside the trial magistrate's forfeiture of the motor vehicle because the gas cylinders were imported by boat, not by the appellant's vehicle

Reasoning

The subject-matter was 68 gas cylinders brought into Kenya from Uganda by boat. The trial magistrate's order of forfeiture of the appellant's motor vehicle was set aside by Patel J on the ground that the vehicle was not the means of importation. That finding was upheld; the second appeal concerned only conviction and sentence.

p. 1

Legal principles established

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  • The prosecution must prove three ingredients of possession of uncustomed goods: possession by the accused, that the goods were dutiable, and knowledge (actual or constructive) that duty had not been paid
  • An accused person in a criminal case bears no burden of proving his innocence, but where he raises evidence of a matter specially within his knowledge, he must show that the evidence relates to him

Court orders

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  1. 1.The appeal to the Court of Appeal was dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisumu
Criminal Appeal No 582 of 1982
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal from the High Court's first-appeal decision)

Relief refused

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Quashing of the conviction for being in possession of uncustomed goods

All ingredients of the offence under Section 185(d)(iii) of the Customs and Excise Act were proved

p. 2

Costs

No costs order was made in the judgment

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.

The case against the appellant was therefore proved as required by law and we order this appeal to be dismissed.
p. 2Disposition - dismissal of second appeal
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.
p. 2Burden of proof - matter specially within accused's knowledge
It is apparent from the line of defence adopted by the appellant that he knew the goods were uncustomed.
p. 2Knowledge of uncustomed goods inferred from the defence adopted

Issues in the judgment

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minor

The coram records Chesoni as 'Ag JA' while the signature block uses 'AG JUDGE OF APPEAL'; the judgment is a certified copy and the neutral citation is absent

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, "THOMAS OCHIENG AJWANG vs REPUBLIC [1983] KECA 98 (KLR)", Case Analysis (1983). Criminal Appeal No 31 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/98/eng@1983-07-19

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