1. Samson Njeru Kareko 2. Antony Njagi Njue 3. Solomon Njeru Ishmael 4. Enos Njeru Ephantus 5. Daniel Gitonga Ngare v Republic
The bottom line
#Kenya's Court of Appeal upheld robbery convictions, confirming that possession of stolen goods within hours of a robbery, even jointly or through others, is enough to convict.
What this practically means
#Executive summary
#Key legal issues
#Concurrent findings of fact on recovery of stolen goods
The Court of Appeal declined to disturb the concurrent findings that a foot pump was recovered from the 4th appellant and a large quantity of stolen goods from the 3rd appellant, as there was evidence supporting them.
The trial Magistrate believed the evidence of Pc. Muli and Pc. Mogambi on the recoveries, and the superior court likewise believed it. The complainant identified the recovered goods as his. On a second appeal the court will not interfere with concurrent findings of fact supported by evidence; no grounds for interference were shown.
Joint/constructive possession by the 1st and 5th appellants
Although the 1st and 5th appellants were not found in physical possession of stolen goods, their conduct in leading police to the 3rd and 4th appellants from whom goods were recovered justified an inference of knowledge, making all of them jointly in possession in law.
The superior court correctly inferred from their conduct that the 1st and 5th appellants knew of the possession of stolen goods by the 3rd and 4th appellants. Section 4 of the Penal Code deems a person who knowingly has goods in the actual possession or custody of another, or for his use or benefit, to be in possession. The concurrent finding that they led police to the recovery was likewise not disturbed.
Doctrine of recent possession
Possession of the stolen goods within hours of the robbery correctly supported the invocation of the doctrine of recent possession to sustain the robbery-with-violence convictions.
The goods were recovered on the same day as the robbery, within hours, and identified by the complainant. The two courts below correctly applied the doctrine, and the second appellate court found no basis to disturb that application. The submission that the 3rd appellant should instead have been convicted of handling stolen property did not prevail.
Repudiated confession and its admissibility
The superior court did not rely on the repudiated confession, so the appeal failed on that ground; however, the superior court erred in holding the confession improperly admitted, as the cited objections went to weight, not admissibility.
The statement was admitted after a trial-within-trial with circumspection, evidenced by the magistrate's rejection of two other cautionary statements for procedural defects. Objections about reasons and co-accused cross-examination went to weight. The statement was amply corroborated by the conduct of the 1st and 5th appellants and the recoveries, and under section 32(1) of the Evidence Act could be taken into consideration against co-accused.
Legal principles established
#- A second appellate court will not interfere with concurrent findings of fact by the two courts below unless there are grounds warranting interference
- A person not in personal possession of stolen goods is nonetheless deemed in possession where he knowingly has the goods in the actual possession or custody of another, or for his use or benefit or that of another, under the definition of possession in section 4 of the Penal Code
- Under section 31 of the Evidence Act (as then operative), information received from an accused that leads to the discovery of a fact may be proved, whether or not it amounts to a confession
- Objections such as failure by the trial magistrate to give reasons for admitting a statement, or failure to allow co-accused cross-examination, go to the weight of a confession rather than its admissibility
- A repudiated confession admitted after a trial-within-trial may be acted upon where amply corroborated, and under section 32(1) of the Evidence Act a confession implicating co-accused may be taken into consideration
- Possession of stolen goods within hours of a robbery engages the doctrine of recent possession
Court orders
#- 1.The appeals of the 1st, 3rd, 4th and 5th appellants are dismissed
- 2.The 2nd appellant's appeal stands marked as abated under rule 70(7) of the Court of Appeal Rules
- On appeal from
- High Court of Kenya at Embu
- H.C.Cr.A. Nos. 85, 86, 87, 88 & 89 of 2001
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal Rules; appeal against the first appellate court's judgment (Appeal from a judgment of the High Court of Kenya at Embu)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "1. Samson Njeru Kareko 2. Antony Njagi Njue 3. Solomon Njeru Ishmael 4. Enos Njeru Ephantus 5. Daniel Gitonga Ngare v Republic", Case Analysis (2010). Criminal Appeal 139 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/207/eng@2010-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.