Hussein Osman Kamakia & Another v Republic [2007] KECA 406 (KLR)
The bottom line
#Kenya's Court of Appeal freed one robbery appellant convicted on an uncorroborated retracted confession, but upheld the other's conviction because police found him in possession of a hidden AK-47 rifle.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this second appellate court can interfere with the concurrent findings of fact of the two courts below 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 the locked house he opened for police
- 3.Whether the withdrawal of charges against Martin Barasa in the appellants' absence prejudiced the appellants
- 4.Whether irregularities in the prosecutor's rank, change of magistrate and unrecorded language vitiated the trial
- 5.Whether a conviction may stand solely on a repudiated confession that is uncorroborated by independent evidence
- 6.Whether a capital sentence and custodial sentences may be passed at the same time
Key legal issues
#Interference with concurrent findings of fact
The finding that the rifle and ammunition were recovered in the first appellant's house was a concurrent finding of fact based on unrefuted evidence of PC Maurice Otieno and the appellant's own admission that he lives in Bondeni Estate; it could not be disturbed.
The court reiterated that a second appellate court cannot interfere with concurrent findings of fact unless shown to be based on no evidence. The first appellant did not specifically refute the police officer's evidence that he led police to the locked house, opened it and pointed to the ceiling where the rifle and ammunition were found.
Legal possession under section 4 of the Penal Code
Even if the house did not belong to or was not occupied by the first appellant, the statutory definition of possession deems him in possession of the rifle and ammunition because he knowingly had them in a place for his or another's use.
Section 4 of the Penal Code defines possession to include knowingly having anything in the actual possession or custody of another person, or having anything in any place whether belonging to or occupied by oneself or not, for the use of oneself or any other person. Leading police to the locked house, opening it and pointing to the ceiling brought the first appellant within that definition.
Conviction on a repudiated confession
The second appellant's conviction, based solely on a repudiated confession uncorroborated by independent evidence, was unsafe; the superior court misdirected itself in treating the repudiation as a retraction and in failing to apply Tuwamoi.
The second appellant denied ever making the statement as recorded, which is repudiation, not retraction of a statement admitted to have been made. The trial magistrate made no specific finding that the confession was true. The battery and cassette said to have been given to him were never recovered. The courts below failed to inquire whether it was safe to rely on the uncorroborated statement.
Alleged trial irregularities
Non-disclosure of the prosecutor's rank in one entry, the alleged change of magistrates and the unrecorded language of some witnesses did not vitiate the trial, as the appellants participated fully and raised no complaint of non-interpretation.
The record showed the trial was conducted throughout by G. A. Ndenda, CM, prosecuted by IP Kiptum, with the charge explained in English and Kiswahili and some witnesses testifying in Kiswahili. The appellants cross-examined witnesses and gave defences and never complained, in the superior court or this Court, that evidence was not interpreted or conducted in a language they did not understand.
Concurrent capital and custodial sentences
The custodial sentences in counts II and III should have been ordered to remain in abeyance rather than imposed alongside the death sentence.
Citing Kushida vs. Republic, the court held it inappropriate to pass a capital sentence and custodial sentence at the same time; the proper procedure is to order the custodial sentence to remain in abeyance. The court therefore preserved the first appellant's conviction but varied the sentence regime accordingly.
Legal principles established
#- A second appellate court cannot 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 an offence item is recovered is deemed in legal possession of that item irrespective of ownership or occupation of the premises.
- A repudiated confession (denial that the statement was ever made, unlike a retraction of a statement admitted to have been made) may ordinarily be acted on only if corroborated in some material particular by independent evidence; a court may act on it alone only if fully satisfied it cannot but be true.
- It is inappropriate to pass a capital sentence and a custodial sentence at the same time; the custodial sentence should be ordered to remain in abeyance.
Court orders
#- 1.Dismissal of the first appellant's appeal
- 2.The concurrent custodial sentences of 10 years in counts II and III against the first appellant to remain in abeyance
- 3.Allowance of the second appellant's appeal
- 4.Quashing of the second appellant's conviction for robbery with violence and setting aside the death sentence
- 5.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 jurisdiction under the Criminal Procedure Code (appeal from High Court on appeal from subordinate court)
- Consolidated with
- H.C.CR.A. Nos. 31 of 2001 & 118 of 2004 (appeals consolidated in the High Court)
Relief refused
#First appellant's appeal against conviction
Concurrent findings of fact by the two lower courts were not shown to be based on no evidence; possession was established; no trial irregularity vitiated the proceedings
Costs
No order as to costs was made (criminal appeal).
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.
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
By leading police to a locked house, opening it and pointing at the ceiling where the AK 47 rifle and rounds of ammunition were recovered the first appellant is deemed to be in possession of the rifle and the rounds of ammunition irrespective of whether the house belonged to him or was occupied by him.
In our view, it is unsafe to solely rely on the repudiated statement which was not corroborated by any independent evidence.
And for the foregoing reasons, 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.
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.
Issues in the judgment
#The judgment cites section 25A of the Evidence Act as in force from 25th July 2005, while stating the confession was recorded on 30th November 1999 when extrajudicial statements were allowed; the provision is noted but expressly not applied to the pre-amendment confession.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Osman Kamakia & Another v Republic [2007] KECA 406 (KLR)", Case Analysis (2007). Criminal Appeal 170 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/406/eng@2007-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.