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Court of AppealDismissedCriminal Appeal 34 of 2006

Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR)

Court of Appeal of Kenya
2 October 2009
SBS.E.O. BosirePWP.N. WakiJOJ.W. Onyango Otieno
3,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a conviction for robbery can rest on one witness's identification if supported by parades and recovered stolen items.

What this practically means

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Executive summary

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This is a second appeal before the Court of Appeal at Nakuru (Bosire, Waki and Onyango Otieno, JJA) by three appellants convicted by the Senior Resident Magistrate, Molo, of robbery contrary to section 296(2) of the Penal Code, with the 1st appellant additionally convicted of rape; the first appeal was dismissed by the High Court at Nakuru (Apondi & Kimaru, JJ) on 16th November 2005. Being a second appeal under section 361 of the Criminal Procedure Code, only issues of law fell for determination. Counsel condensed the grounds into four: unreliability of single-witness night-time identification; failure by the first appellate court to re-evaluate evidence; improper reliance on recent possession doctrine; and disregard of alibi defences. The court held that although the trial magistrate should have cautioned himself on the dangers of single-witness identification, the complainant's visual identification was fortified by properly conducted identification parades, recovery of stolen items from the 1st appellant's house hours after the robbery (engaging the rebuttable presumption of the recent possession doctrine against the 1st and 2nd appellants), and the 2nd appellant leading police to the 1st appellant. The 3rd appellant's repudiated confession was held to be of little probative value as it should have been recorded in the language it was made, but his parade identification stood. The court found the first appellate court properly re-evaluated the evidence and displaced the alibis, and declined to draw the Bukenya adverse inference from the prosecution's failure to call a student witness. All appeals were dismissed.

Questions the Court framed

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

  1. 1.Whether the trial and first appellate courts erred in basing a conviction on the evidence of a single identifying witness in difficult circumstances
  2. 2.Whether the first appellate court failed in its duty to re-evaluate the evidence
  3. 3.Whether the superior court improperly relied on the doctrine of recent possession of stolen property where the evidence of recovery was unsatisfactory
  4. 4.Whether the superior court disregarded the appellants' defences of alibi

Key legal issues

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01

Reliability of single-witness visual identification in difficult circumstances

Holding

The conviction based on G's visual identification was safe because it was fortified by well-conducted identification parades and other supporting evidence; failure to give a prior description does not necessarily weaken identification evidence where the parade was well conducted.

Reasoning

The court acknowledged the identification conditions were difficult (night time, poor light) and that the trial magistrate should have cautioned himself. However, G had a prolonged opportunity to observe the robbers, picked the 1st and 3rd appellants in separate, properly conducted identification parades, and her identification was corroborated by recovery of stolen items and the 2nd appellant leading police to the 1st appellant.

p. 3
02

Doctrine of recent possession of stolen property

Holding

Both courts below were entitled to invoke the doctrine against the 1st appellant since recovery occurred hours after the robbery and he offered no explanation; the doctrine also supported the 2nd appellant's identification through leading police to the 1st appellant.

Reasoning

The recovery occurred only a few hours after the robbery, too short for items to change hands. The 1st appellant admitted items were recovered and never challenged the arresting officers, so the evidential burden shifted to him. The 2nd appellant's knowledge connecting the 1st appellant to the robbery supported G's visual identification of him. No recovery connected the 3rd appellant.

p. 3
03

Repudiated confession statement

Holding

The 3rd appellant's confession, being short, recorded in English when allegedly made in Swahili and read back in Swahili, was of little if any probative value and could not sustain conviction standing alone.

Reasoning

The recording officer testified he read the English statement back in Swahili, implying the statement was given in Swahili; the court held a confession should be recorded in the language it was made with translation if necessary. The repudiated statement was thus of little value, but the 3rd appellant was properly identified at a parade conducted per police standing orders.

p. 4
04

Duty of first appellate court to re-evaluate evidence

Holding

The first appellate court discharged its duty by analysing and re-evaluating the evidence as expected.

Reasoning

The court considered the appellants' complaint that the superior court failed to re-evaluate the evidence and found no merit, noting that a careful reading of the superior court's judgment showed it analysed and re-evaluated the evidence and also displaced the alibi defences.

p. 4
05

Failure to call a witness (Bukenya principle)

Holding

No adverse inference arose from the prosecution's failure to call the student witness because the evidence adduced did not barely establish the prosecution case.

Reasoning

While the prosecution must call all witnesses necessary to establish the truth even if adverse, it need not call a plurality of witnesses. An adverse inference applies only where the evidence barely establishes the case and a witness is withheld; here the identification and corroborative evidence were sufficient, so no inference was warranted.

p. 4

Legal principles established

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  • On a second appeal only issues of law fall for consideration by the Court of Appeal
  • A fact may be proved by the testimony of one witness, and identification principles from authorities such as Turnbull are a general guide, each case turning on its own facts
  • A confession statement must be recorded in the language in which it is made, with a translation if not in English
  • The prosecution is obliged to call all witnesses necessary to establish the truth, but is not bound to call a plurality of witnesses; an adverse inference from a withheld witness arises only where the evidence adduced barely establishes the case
  • Where stolen items are recovered from an accused shortly after robbery, the evidential burden lies on the accused to explain possession; failing which the rebuttable presumption is that he was one of the robbers

Court orders

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  1. 1.The appellants' respective appeals are dismissed

The bench

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

SB
majority
PW
majority
JO
majority
On appeal from
High Court of Kenya at Nakuru
H.C. Cr. A. Nos. 336, 337 & 338 of 2002
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Quashing of convictions and sentences on all grounds raised

The appeals lacked merit; identification, recent possession evidence and the first appellate court's re-evaluation were all upheld

p. 4

Costs

No costs order 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 appellant’s respective appeals lack merit . Accordingly they are dismissed. Order accordingly.
p. 4Final orders - dismissal of appeal
Being a second appeal only issues of law fall for consideration by dint of the provisions of section 361 of the Criminal Procedure Code.
p. 1Scope of second appeal
this court has time and again said that a fact may be proved by the testimony of one witness (see Maitanyi v. R. (1986) 2 KAR 75)
p. 2Single witness testimony
a confession statement should be recorded in the language it is made, and if the language is not English then a translation thereof should be given.
p. 3Recording of confession statements
the prosecution is not bound to call a plurality of witnesses to establish a fact.
p. 4Duty to call witnesses
The rebuttable presumption is that he was one of the robbers.
p. 3Doctrine of recent possession

Issues in the judgment

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minor

The judgment records the complainant's testimony with internally inconsistent dates regarding exposure of suspects before the identification parade, which the court itself noted and treated as a curable error

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR)", Case Analysis (2009). Criminal Appeal 34 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/163/eng@2009-10-02

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