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Court of AppealDismissedCriminal Appeal 352 of 2008

RICHARD ODUOR ADERA v REPUBLIC [2010] KECA 455 (KLR)

Court of Appeal of Kenya
5 February 2010
1,955 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 unexplained possession of stolen goods, identified and recovered by police, is enough to convict someone of robbery.

What this practically means

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Executive summary

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This was a second and final appeal against convictions on four counts of robbery with violence contrary to section 296(2) of the Penal Code and sentences of death imposed by the Senior Principal Magistrate's Court at Siaya. The appellant, the 5th accused, was convicted on the strength of the doctrine of recent possession: bicycles stolen during a robbery at Sega on the evening of 18th December 2005, in which one complainant was killed, were recovered from him the following day. The first appellate court (High Court) allowed the appeal only in respect of count 3 and upheld the convictions and sentences on counts 1, 2 and 4. Before the Court of Appeal, counsel abandoned the fourth ground (duplicity) and pursued three grounds: failure to consider the appellant's evidence, wrongful invocation of recent possession, and shifting of the burden of proof to the appellant. The Court, confined to matters of law under section 361 of the Criminal Procedure Code, applied its earlier decision in Isaac Nanga Kahiga on the elements of recent possession, found that the stolen bicycles were positively identified by their owners and recovered from the appellant, who offered no explanation, and held that the convictions were based on very sound evidence of recent possession and that the appellant's conduct demonstrated guilt. The appeal was dismissed in its entirety. No costs order was made. Note: the coram and the body of the judgment conflict as to which High Court bench decided the first appeal.

Questions the Court framed

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

  1. 1.Whether the learned Judges of the High Court erred in failing to consider the appellant's evidence without assigning reasons
  2. 2.Whether the trial magistrate wrongly invoked the doctrine of recent possession so as to found a conviction
  3. 3.Whether the courts below shifted the burden of proof of alibi to the appellant
  4. 4.(Ground 4, on duplicity of charges, was abandoned by counsel)

Key legal issues

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01

Application of the doctrine of recent possession as a basis of conviction

Holding

The Court upheld the concurrent findings of the two courts below that the appellant was in recent possession of bicycles stolen the previous evening during the robbery, gave no explanation for their possession, and that this evidence justified conviction.

Reasoning

The robbery occurred on 18th December 2005 and the following day the appellant was seen riding one of the stolen bicycles; two more stolen bicycles were recovered from his home when he ran away from the police party. The recovered bicycles were positively identified by their owners. The appellant offered no explanation as to how he came to possess the stolen items. Applying the principles in Isaac Nanga Kahiga, the Court was satisfied the convictions were based on very sound evidence of recent possession and that his conduct demonstrated guilt.

p. 5
02

Scope of a second and final appeal

Holding

On a second appeal under section 361 of the Criminal Procedure Code, only matters of law fall for consideration, so the Court confined itself to the legal grounds raised.

Reasoning

The appeal came to the Court of Appeal as a second and final appeal, and the Court expressly noted that only matters of law may be considered under section 361 of the Criminal Procedure Code. It therefore considered the grounds as framed in the memorandum of appeal, minus the abandoned fourth ground, and did not re-evaluate the facts beyond the concurrent findings of the two courts below.

p. 3
03

Grounds on burden of proof and failure to consider the appellant's evidence

Holding

These grounds were rejected; the concurrent findings of the two courts below stood and no error of law was established.

Reasoning

Counsel for the appellant argued that PW1 did not sufficiently describe the bicycle and that the appellant himself claimed ownership, and that the burden of proof had been shifted to him. The respondent maintained that both courts below agreed there was evidence of recent possession and that the bicycles were sufficiently identified by their owners. The Court, having considered the concurrent findings, found no merit in the appeal and dismissed it in its entirety.

p. 5

Legal principles established

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  • On a second and final appeal, only matters of law may be considered by the Court of Appeal.
  • Before a conviction can rest on the doctrine of recent possession, the prosecution must positively prove that the property was found with the suspect, that it was positively the property of the complainant, and that it was recently stolen; proof of possession requires acceptable evidence of search and recovery, and discredited evidence cannot suffice.

Court orders

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  1. 1.The appeal was dismissed in its entirety

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kakamega
H.C.CR. Appeal No. 49 of 2003
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second and final appeal on matters of law only)

Relief refused

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Allowance of the appeal on grounds 1 to 3 (sufficiency of identification of the bicycles, erroneous application of recent possession, and burden of proof)

The Court found the convictions rested on sound evidence of recent possession and that the appellant's conduct demonstrated guilt

p. 5

Costs

No costs order is recorded in the judgment (a criminal appeal in which no costs order was made).

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.

In view of the foregoing we find no merit in this appeal and we order that it be dismissed in its entirety. It is so ordered.
p. 5Final orders - dismissal of the appeal
It is trite law that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved.
p. 5Doctrine of recent possession
The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen properties can move from one person to another.
p. 5Recency of possession is assessed by the ease with which stolen goods can change hands
Still dissatisfied with the foregoing the appellant now comes to this Court by way of second and final appeal. That being so only matters of law may be considered – see section 361 of the Criminal Procedure Code.
p. 3Scope of second and final appeals

Issues in the judgment

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material

The coram states the appeal is from the High Court at Kakamega (Sergon & Kariuki, JJ) dated 28th April 2005 in H.C.CR. Appeal No. 49 of 2003, but the judgment body describes the first appellate decision as delivered by the High Court at Kisumu (Mwera & Karanja, JJ) on 23rd September 2008. The case number and year (2003) are also inconsistent with a trial in Criminal Case No 160 of 2006 arising from a robbery on 18th December 2005.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "RICHARD ODUOR ADERA v REPUBLIC [2010] KECA 455 (KLR)", Case Analysis (2010). Criminal Appeal 352 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/455/eng@2010-02-05

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