Kenneth Otieno Odhiambo & another v Republic [2011] KECA 135 (KLR)
The bottom line
#Kenya's Court of Appeal upheld death sentences for robbery, confirming convictions can rest on stolen property found in an accused's possession even after a key evidence law repeal.
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 first appellate court erred in affirming conviction based on evidence that the appellants led police to recover stolen items, given the repeal of section 31 of the Evidence Act
- 2.Whether the appellants' conviction was based on law that had been repealed at the time the offence was allegedly committed
Key legal issues
#Applicability of the repealed section 31 of the Evidence Act to the evidence relied on for conviction
The conviction was not founded on information received from the accused but on recent possession of stolen property, so the repeal of section 31 did not vitiate it
The trial court convicted on the doctrine of recent possession: stolen property was found in the appellants' houses and they gave no explanation. Both prosecution and appellants agreed the appellants did not lead police to the houses; recovery followed an informer's information. Section 31, even before repeal, only rendered admissible information received from an accused person, which was not the basis here, so its repeal by Act No. 5 of 2003 was immaterial.
Safety of the conviction on the evidence as a whole
The conviction was upheld as safe
Having considered the entire record, the Court found the convictions safe; stolen property was recovered from the appellants' homes and identified by passengers, and the appellants offered no explanation for its presence.
Legal principles established
#- Evidence recovered in consequence of information given by an informer does not depend on the repealed section 31 of the Evidence Act, and a conviction based on unexplained possession of recently stolen property may be safe notwithstanding the repeal.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence of death are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.CR.A. No. 50 & 51 of 2005
- Jurisdiction invoked
- Second appeal under the Criminal Procedure Code (stated as a second appeal against both conviction and sentence; specific section not quoted in the judgment)
Relief refused
#Setting aside the convictions and death sentences for robbery with violence
The conviction was based on recent possession of stolen property, not on information from the accused under the repealed section 31
Costs
No costs order was made 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.
It is plain that the appellants were solely convicted on the basis of recent possession of the complaints’ stolen property.
The Property was recovered in consequence of the information given by an informer. The repealed Section 31 of the Evidence Act, therefore, has no relevance to the evidence that was presented before the trial court.
In the result, this appeal fails and is accordingly dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Otieno Odhiambo & another v Republic [2011] KECA 135 (KLR)", Case Analysis (2011). Criminal Appeal No. 456 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/135/eng@2011-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.