John Mureithi & 2 others v Republic

Rule 70(7) empowers the Court to order abatement where an appellant not in custody fails to attend the hearing and cannot be traced without unreasonable delay or expense, provided no injustice will be done. The prosecution reported, and a Nakuru prison report verified, that the first appellant escaped from custody on 4th March 2007 and had not been apprehended. The Court drew the inference from the escape itself that he did not intend to prosecute his appeal and accordingly ordered that his appeal abate.

The Court reiterated the settled limits of a second appeal: only points of law may be raised, and concurrent findings of fact stand unless based on no evidence. The trial magistrate, though she did not evaluate the evidence, made findings of fact and disbelieved the alibi defences; the High Court, alive to its duty as a first appellate court, independently scrutinised and re-evaluated the evidence, made its own findings, and held the defences to be fabrications. With both courts finding recent possession of the stolen vehicle, there were no grounds for interference.

Counsel argued that recording the language as 'English/Swahili' - a designation said to be unknown - rendered the plea irregular. The Court noted that all four accused, including the second appellant, pleaded not guilty; that the second appellant never complained that the charge was read in a language he did not understand; and that no failure of justice was occasioned. An error of that nature falls within the curative provision of section 382 of the Criminal Procedure Code.

The confusion arose because the record of appeal contained the original charge sheet of 12th February 1999, which did not charge the second appellant in count II. That charge had, however, been substituted on 28th October 1999 with a new charge sheet in which the second appellant was jointly charged with robbery in count II, and fresh pleas were taken on 29th October 1999. Counsel who appeared in the superior court had appreciated this; the new charge, contained in the original trial record, was simply omitted from the record of appeal.

The third appellant's ground invoked section 77(2)(d) and (e) of the Constitution, alleging that he was deprived of his rights by being made to continue the trial without counsel. The Court found the record showed the opposite: the third appellant, who was the second accused at the trial, was never represented by counsel during the trial and conducted his own defence. The factual premise of the constitutional complaint was therefore absent, and the ground collapsed.

The complaint was that neither the trial nor the first appellate court evaluated the alibi defences of the second and third appellants. The Court observed that although the trial magistrate did not evaluate the evidence, she nevertheless made findings of fact and disbelieved the alibis. The High Court, exercising its first-appellate duty, considered the defences itself and dismissed them as fabrications designed to portray the appellants as innocent businessmen wrongly arrested. Those concurrent findings could not be disturbed on second appeal.

Relying on Andrea Obonyo v Republic [1962] EA 542, the Court held that unexplained recent possession of stolen property raises a presumption of participation in the theft or robbery. The complainant proved ownership of the vehicle by documents and other evidence notwithstanding the false registration numbers, and the denials of possession by the appellants had been disbelieved by both courts below. The presumption of guilt from recent possession accordingly applied, notwithstanding the absence of visual identification by the complainant.