Hussein Osman Kamakia & Another v Republic [2007] KECA 403 (KLR)
The bottom line
#Kenya's Court of Appeal upheld one robbery conviction based on a hidden gun but freed a second man convicted only on his disputed confession.
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 second appellate court could interfere with the concurrent findings of fact that the firearm and ammunition were recovered in the first appellant's house
- 2.Whether the first appellant was in legal possession of the rifle and ammunition found in a house he opened and led police to
- 3.Whether the withdrawal of charges against Martin Barasa in the absence of the appellants vitiated the trial
- 4.Whether irregularities in the record (prosecutor's rank, transfer of trial between magistrates, unrecorded language of witnesses) rendered the proceedings a nullity
- 5.Whether a conviction of the second appellant could safely be founded solely on his repudiated, uncorroborated confession
- 6.Whether a capital sentence may properly be passed together with a custodial sentence in the same trial
Key legal issues
#Concurrent findings of fact by two lower courts
The second appellate court cannot interfere with concurrent findings of fact unless they are based on no evidence; the finding that the rifle and ammunition were recovered in the first appellant's house was supported by evidence from PC Maurice Otieno and was not refuted.
The first appellant's counsel argued the firearm was found in Martin Barasa's house, not his. The court held there were concurrent findings of fact by the two courts below, supported by the evidence that the first appellant led police to the locked house, opened it, and pointed at the ceiling where the weapon was recovered, and that he himself stated he lived in Bondeni Estate.
Legal possession of a firearm found in another's premises
Under section 4 of the Penal Code, possession includes knowingly having anything in the actual possession of another or in any place for one's own or another's use; leading police to the locked house, opening it and pointing out the firearm established possession.
Even if the house did not belong to him, the definition of possession in section 4 of the Penal Code deems the first appellant to have possessed the rifle and ammunition because he opened the house and pointed to where they were concealed.
Conviction on a repudiated, uncorroborated confession
A conviction may not safely be founded solely on a repudiated confession uncorroborated by independent evidence; the superior court misdirected itself in treating the second appellant's denial of making the statement as a retraction and in failing to apply Tuwamoi.
The second appellant denied ever making the statement as recorded, which is not a retraction of a lawfully obtained statement. The trial magistrate made no specific finding that the confession was true, the statement was an inquiry statement taken after two days in custody on unrelated information, and no material item was recovered from him. Reliance on it alone was unsafe.
Alleged nullity of the trial proceedings
None of the complained-of irregularities - omission of the prosecutor's rank on one date, alleged change of trial magistrate, and unrecorded language of some witnesses - vitiated the trial, since the record showed a continuous trial before the Chief Magistrate and no complaint of failure of interpretation.
The court found there was no prosecution on the date the rank was unrecorded, the record did not support the claim of a partial handover, and the appellants never alleged they did not understand the language or interpretation, either in the superior court or in the Court of Appeal.
Passing capital and custodial sentences together
It is inappropriate to impose a capital sentence and a custodial sentence at the same time; the custodial sentences should remain in abeyance.
Following Kushida v Republic, the court directed that the concurrent ten-year sentences in counts II and III against the first appellant remain in abeyance rather than being vacated.
Legal principles established
#- A second appellate court will not interfere with concurrent findings of fact of the two courts below unless they are shown to have been based on no evidence.
- A person who leads police to a locked house, opens it and points out where a firearm is hidden is in legal possession of that firearm under section 4 of the Penal Code, whether or not the house belongs to or is occupied by him.
- A court may only act on a repudiated or retracted confession if it is satisfied it is true, and usually only where it is corroborated in some material particular by independent evidence.
- A denial that a statement was made at all is not a retraction of a voluntarily obtained statement; a court that treats such a denial as a retraction and then finds voluntariness misdirects itself.
- It is inappropriate to pass both a capital sentence and a custodial sentence against the same accused at the same time; the custodial sentence should be ordered to remain in abeyance.
Court orders
#- 1.Dismissal of the first appellant's appeal, save that the concurrent custodial sentences in counts II and III shall remain in abeyance
- 2.Allowance of the second appellant's appeal, quashing his conviction for robbery with violence and setting aside the sentence of death
- 3.The second appellant to be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A. Nos. 31 of 2001 & 118 of 2004
- Jurisdiction invoked
- Second appellate criminal appeal to the Court of Appeal under the Criminal Procedure Code (appeal from High Court appeals against conviction and sentence)
Relief refused
#First appellant's appeal against conviction
Concurrent findings of fact by the two courts below that the firearm was recovered in his house, and legal possession under section 4 of the Penal Code, supported the conviction; no procedural irregularity vitiated the trial
Costs
No order as to costs was made (criminal appeal; no costs order appears 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.
In the result, we dismiss the appeal by the first appellant save that we order the concurrent custodial sentences in count II and III do remain in abeyance.
we allow the appeal by the second appellant, quash the conviction for the offence of robbery with violence and set aside the sentence. The second appellant shall be set at liberty forthwith unless otherwise lawfully held.
It is trite law that the second appellate court cannot interfere with the concurrent findings of fact of the two courts below unless they are shown to have been based on no evidence
In our view, it is unsafe to solely rely on the repudiated statement which was not corroborated by any independent evidence.
it is inappropriate to pass a capital sentence and custodial sentence against the accused at the same time. The appropriate procedure is to order the custodial sentence to remain in abeyance
Issues in the judgment
#The judgment states section 25A of the Evidence Act came into force on 25th July, 2005, but the judgment is delivered on 2nd March, 2007 and the date is presented oddly within the narrative; the passage as printed is internally confusing as to the temporal reference.
The record is silent on costs, consistent with a criminal appeal; no costs order appears in the final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Osman Kamakia & Another v Republic [2007] KECA 403 (KLR)", Case Analysis (2007). Criminal Appeal 170 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/403/eng@2007-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.