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Court of AppealDismissedCriminal Appeal 265 of 2005

DAVID GICHURE KANYORO & another v REPUBLIC [2006] KECA 151 (KLR)

Court of Appeal of Kenya
28 July 2006
SBS.E.O. BosireEOE.O. O’KubasuWDW.S. Deverell
1,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that if you're caught soon after driving a stolen vehicle, only a believable explanation will save you.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Mombasa against the decision of the High Court (Mwera and Maraga JJ.) dated 5 October 2004, dismissing the appellants' first appeals against conviction and sentence. The appellants had been tried and convicted by the Senior Resident Magistrate, Mombasa, of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to the mandatory death sentence. The complainant, Benson Matano Kazungu, a taxi driver, was lured from Mombasa towards Mariakani, robbed of his Toyota Corolla at gunpoint and abandoned in a thicket; the appellants were intercepted the same night driving the vehicle towards Nairobi. Two grounds were argued: that the particulars of the charge disclosed no offence, and that the first appellate court failed to analyse and re-evaluate the evidence. The Court held that robbery with violence under section 296(2) is essentially aggravated theft and that the particulars, alleging a theft, a threat of violence to a named person and the use of a firearm, disclosed the offence. Applying section 361 of the Criminal Procedure Code, it confirmed that a second appeal lies only on issues of law, found that the superior court had in fact re-evaluated the evidence, and declined to disturb the concurrent findings of fact on credibility. It applied the rebuttable presumption of fact arising from recent possession of stolen property under section 119 of the Evidence Act, citing Jethwa v. R., and rejected the appellants' hire-and-deposit explanation as a story concocted during trial. Both appeals were dismissed; no costs order was made.

Questions the Court framed

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

  1. 1.Whether the particulars of the charge of robbery with violence contrary to section 296(2) of the Penal Code disclosed the offence charged
  2. 2.Whether the first appellate court (the High Court) failed to analyse and re-evaluate the evidence before the trial court
  3. 3.Whether the Court could interfere with the concurrent findings of fact of the two courts below, including the rejection of the appellants' hire-arrangement explanation and the alleged conspiracy between the complainant and the herdsman

Key legal issues

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01

Sufficiency of the particulars of the charge under section 296(2) of the Penal Code

Holding

The particulars disclosed the offence: they alleged a theft, a threat of violence to the named complainant to obtain the motor vehicle in his possession, and the use of a firearm, a dangerous weapon, bringing the robbery within the aggravated circumstances of section 296(2)

Reasoning

The Court read the particulars against section 295, which defines robbery as stealing accompanied by violence or threats of violence to obtain or retain the thing stolen, and against section 296(2), which sets out the aggravating circumstances attracting the death penalty. The particulars alleged theft of the Toyota Corolla, a threat of violence to Kazungu to obtain the vehicle, and the use of a pistol, a dangerous weapon. The charge was therefore properly laid and the submission that it disclosed no offence failed.

p. 2
02

Scope of a second appeal and the duty of the first appellate court to re-evaluate the evidence

Holding

A second appeal lies only on issues of law; the High Court had discharged its duty to analyse and re-evaluate the evidence, and the Court of Appeal would not disturb the concurrent findings of fact of the two courts below

Reasoning

Counsel's principal complaint was that the superior court had not re-evaluated the evidence, failing to detect an alleged conspiracy between the complainant and the herdsman. The Court found the High Court had expressly considered the credibility of Kazungu and the manner in which the robbery was executed, concluding the appellants were properly convicted. Being concurrent findings of fact, they could not be interfered with on a second appeal, which is confined to questions of law under section 361 of the Criminal Procedure Code.

p. 3
03

Presumption arising from recent possession of stolen property

Holding

A person found in recent possession of property reported stolen is presumed the thief unless he gives a reasonable explanation; the presumption of fact under section 119 of the Evidence Act is rebuttable, and the appellants' explanation of a hire arrangement secured by a Kshs.35,000 deposit was disbelieved

Reasoning

Both appellants admitted they were arrested a few hours after the vehicle was reported stolen, driving it towards Nairobi. Recent possession raises a rebuttable presumption of fact that the possessor is the thief. Their account, that Kazungu released the vehicle on hire against a refundable deposit to be returned the next day, was rejected: Kazungu promptly reported the incident to police, and the defence figures and allegations shifted during trial, showing the story was concocted as the case proceeded.

p. 2
04

Complainant's alleged complicity and the conspiracy theory

Holding

The claim that Kazungu and Mkumbu conspired to frame the appellants was rejected; Kazungu's conduct, including his prompt report to the police after being untied, excluded his complicity in the robbery

Reasoning

Kazungu was initially treated as a suspect because he had acted against his employer's instructions not to operate the vehicle beyond the town boundary, but after the herdsman freed him he went straight to Mariakani Police Station, and his report led to the same-night arrest. Cross-examination of the owner, Ngumbao, revealed shifting defence allegations, a Kshs.5,000 deposit suggestion against the defence figure of Kshs.35,000, and a late claim that the vehicle belonged to Mrs. Kibwana, demonstrating the story was concocted as the trial proceeded.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal lies only on issues of law by dint of section 361 of the Criminal Procedure Code
  • Robbery with violence under section 296(2) of the Penal Code is essentially aggravated theft, and the aggravating circumstances are those set out in that section
  • A person found in recent possession of property reported stolen is presumed to be the thief unless he gives a reasonable explanation; the presumption is one of fact under section 119 of the Evidence Act and is rebuttable
  • An appellate court will not interfere with concurrent findings of fact of the two courts below

Court orders

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  1. 1.The respective appeals of the 1st and 2nd appellants were dismissed, leaving the conviction and the mandatory death sentence intact

The bench

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

SB
majority
EO
majority
WD
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. Nos. 228 & 229 of 2003
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361 of the Criminal Procedure Code, which confines a second appeal to issues of law

Relief refused

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Quashing of the conviction for robbery with violence and setting aside of the mandatory death sentence

The particulars disclosed the offence and the Court found no basis to interfere with the concurrent findings of fact of the two courts below

p. 3

A finding that the first appellate court failed to re-evaluate the evidence, with consequential interference with the conviction

The Court was satisfied the superior court had analysed and re-evaluated the evidence before the trial court

p. 3

Costs

No costs order was made; the judgment contains no order as to costs.

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.

In the result we are satisfied that the appellants’ respective appeals have no merit and we order that they be and are hereby dismissed.
p. 3Disposition: dismissal of the second appeal
A charge of robbery with violence under section 296(2) of the Penal Code is essentially aggravated theft. The aggravating circumstances are set out under the relevant section.
p. 1Nature of the offence of robbery with violence
The position in law is that a person found in recent possession of property reported as stolen is presumed to be the thief of it unless he gives a reasonable explanation as to how he came to be in possession thereof.
p. 2Presumption from recent possession of stolen property
This is a second appeal and by dint of the provisions of section 361 of the Criminal Procedure Code, a second appeal can only lie on issues of law.
p. 3Scope of a second appeal
We have no basis for interfering with the concurrent findings of fact of the two courts below.
p. 3Non-interference with concurrent findings of fact
This clearly shows that the appellants’ story was being concocted as the trial proceeded.
p. 3Credibility: shifting defence account

Issues in the judgment

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minor

The 2nd appellant is named 'MUCHIRI WAITITU' in the cause title but 'Simon Muchiri Waititu' in the opening of the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "DAVID GICHURE KANYORO & another v REPUBLIC [2006] KECA 151 (KLR)", Case Analysis (2006). Criminal Appeal 265 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/151/eng@2006-07-28

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