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Court of AppealDismissedCriminal Appeal No. 404 of 2009

George Otieno Dida & another v Republic [2011] KECA 237 (KLR)

Court of Appeal of Kenya
23 June 2011
SBS.E.O. BosireEGE.M. GithinjiAVAlnashir Visram
1,877 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that being found with stolen goods hours after a robbery, and an attacker being armed, are enough to convict for robbery with violence.

What this practically means

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Executive summary

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This Court of Appeal judgment at Kisumu (Bosire, Githinji and Visram, JJ.A) dealt with a second appeal by George Otieno Dida alias Stevo and Stephen Odhiambo Ochieng against their convictions for four counts of robbery with violence contrary to section 296(2) of the Penal Code and sentences of death. The robbers invaded homes at Nyalenda Estate, Kisumu, in May 2003; hours later the first appellant was arrested with a stolen television and the second appellant was found in a house where other stolen items were recovered, some partially dismantled. The trial court convicted on the doctrine of recent possession, and the High Court on first appeal dismissed the appeals, having found the visual identification unsatisfactory but the recent-possession circumstantial evidence sound. Before the Court of Appeal, counsel argued that the appellants' unchallenged explanations of possession defeated the doctrine of recent possession, and that no violence was proved so the conviction could only lie under section 296(1). The court declined to disturb the concurrent findings of fact, applying Mbogo v Shah and Republic v Oyier, held that recent possession raised a rebuttable presumption under section 119 of the Evidence Act that the appellants were the thieves, and clarified that proof of only one of the alternative modes in section 296(2) suffices - the gang acted in company and were armed with a panga. The appeal was dismissed in its entirety, the High Court's judgment being affirmed. The court also observed, without varying any order, that a person cannot be sentenced to death more than once.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal should interfere with the concurrent findings of fact of the trial and first appellate courts that the appellants were found in recent possession of the stolen items
  2. 2.Whether the doctrine of recent possession was properly invoked notwithstanding the explanations offered by the appellants
  3. 3.Whether the evidence disclosed the ingredients of robbery with violence under section 296(2) of the Penal Code, particularly whether actual violence need be proved

Key legal issues

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01

Interference with concurrent findings of fact on second appeal

Holding

The Court declined to interfere with the concurrent findings of the trial and first appellate courts that the appellants were found in recent possession of the stolen property, as those findings were based on credibility of witnesses supported by documentary evidence.

Reasoning

Findings of fact rest on the exercise of judicial discretion, which an appellate court may disturb only on established grounds: misdirection by the lower court, absence of a legal basis for the finding, or a conclusion no reasonable tribunal could reach. The trial court had the benefit of seeing and hearing the witnesses and both courts below believed the complainants, whose ownership was corroborated by receipts and permits.

p. 3
02

Ingredients of robbery with violence under section 296(2) of the Penal Code

Holding

Section 296(2) sets out different modes of committing the offence, and proof of any one mode is sufficient; actual violence need not be proved. The gang was in company and armed with a panga, an offensive and dangerous weapon.

Reasoning

The appellant's counsel wrongly assumed that actual violence had to be proved in every case. The section prescribes three alternative modes: acting in company of one or more persons; being armed with an offensive or dangerous weapon; and beating, striking, causing actual bodily harm or threatening violence. The evidence showed more than one attacker and the attackers were armed with a panga.

p. 3
03

Doctrine of recent possession as circumstantial evidence

Holding

Recent possession of stolen items, recovered less than five hours after the robberies and positively identified by the owners, raised a rebuttable presumption that the appellants were the thieves; their explanations did not displace this.

Reasoning

Possession of recently stolen property raises a rebuttable presumption of fact under section 119 of the Evidence Act that the possessor is either the thief or a guilty receiver. The short interval between theft and recovery excluded the possibility of guilty receipt, and the appellants failed to give a reasonable explanation of their possession, as the courts below found.

p. 3
04

Sentencing on multiple counts carrying the death penalty

Holding

The court observed as an aside that where a person is sentenced to death on multiple counts, only one death sentence should be imposed with other sentences held in abeyance.

Reasoning

The court noted that a person cannot die more than once; the trial court should therefore have imposed the death sentence on one count and ordered any other sentence to be in abeyance. However, no order varying the sentences was made and the appeal was dismissed in its entirety, so this observation did not result in any relief.

p. 2

Legal principles established

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  • An appellate court may not interfere with the exercise of judicial discretion or findings of fact of a lower court unless the lower court misdirected itself or no reasonable tribunal could have reached the finding
  • Proof of only one of the modes of committing robbery with violence under section 296(2) of the Penal Code is sufficient to establish the charge; actual bodily violence need not be proved
  • Possession of stolen property shortly after a robbery raises a rebuttable presumption of fact that the possessor is the thief or a guilty receiver, and the time lapse may exclude guilty receipt

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.

SB
majority
EG
majority
AV
majority
On appeal from
High Court of Kenya at Kisumu
H.C. Cr. A. No. 441 of 2003
Jurisdiction invoked
Second appellate jurisdiction under the Court of Appeal's appellate jurisdiction over appeals from the High Court in criminal matters (Criminal Appeal No. 404 of 2009)

Relief refused

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Setting aside of the convictions and sentences for robbery with violence

All ingredients of the charges under section 296(2) of the Penal Code were proved by cogent and sufficient evidence

p. 3

Costs

No costs order made in the judgment (criminal appeal dismissed)

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.

For us to interfere with such a finding, it must first be shown that the lower court, either had no legal basis for such finding or that no reasonable judicial tribunal could have reached such a finding.
p. 3Standard for interference with concurrent findings of fact
Each of the counts on record alleges all the three and proof of one only is sufficient to establish a charge under section 296 (2) of the Penal Code.
p. 3Alternative modes of committing robbery with violence
The evidence against the appellants though circumstantial, raised a rebuttable presumption of fact under section 119 of the Evidence Act, Cap 80 Laws of Kenya, that they were either the thieves or guilty receivers.
p. 3Doctrine of recent possession
In the result, we agree with Mr. Gumo, Assistant Deputy Director of Public Prosecutions, that all the ingredients of the charges against both appellants were proved by cogent and sufficient evidence. Consequently, this appeal lacks merit and it is accordingly dismissed.
p. 3Disposition - appeal dismissed

Issues in the judgment

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minor

The judgment's heading states the appeal is from a High Court judgment dated 9th February 2010, while the delivered judgment date is 23rd June 2011 and the appeal number (404 of 2009) predates the first-instance judgment date as printed; the dates as printed are internally inconsistent but the chronology of the appeal is otherwise clear.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "George Otieno Dida & another v Republic [2011] KECA 237 (KLR)", Case Analysis (2011). Criminal Appeal No. 404 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/237/eng@2011-06-23

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