Appollo Olenja Apitsa v Republic [2020] KECA 681 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a robbery conviction based on a stolen phone but scrapped the mandatory death sentence, replacing it with 20 years' imprisonment.
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 doctrine of recent possession was properly invoked to uphold the appellant's conviction for robbery with violence
- 2.Whether the learned Judges of the first appellate court erred by failing to find that the evidence supported the alternative count of handling stolen goods rather than the main count of robbery with violence
- 3.Whether the death sentence imposed on the appellant was unconstitutional in light of Muruatetu
Key legal issues
#Application of the doctrine of recent possession
The doctrine was properly applied: the mobile phone was found with the appellant, positively identified by the complainant, and recently stolen; his explanation (that it was security for a loan from a friend he could not produce) was disbelieved
The prosecution proved the three elements laid down in Erick Otieno Arum: property found with the suspect, positively identified by the complainant, and recently stolen. Time of recovery varies with the nature of the property. Under Section 111 of the Evidence Act the burden then shifted to the appellant to rebut; his uncorroborated loan explanation, which he never demonstrated to police, was unreasonable, justifying the inference that he was the thief or a guilty receiver.
Ingredients of robbery with violence under Section 296(2)
All three ingredients (arming, company, violence) were proved by the uncontroverted evidence of M and L, corroborated by the P3 form, so the evidence supported the main count and not merely the alternative count of handling stolen goods
The court restated the Oluoch ingredients and adopted Daniel Muthoni's holding that proof of any one element suffices. The invasion of the home by armed persons who injured M was uncontroverted and medically corroborated, establishing robbery with violence regardless of whether the appellant was positively identified at the scene.
Constitutionality of the mandatory death sentence for robbery with violence
In light of Muruatetu and Kittiny, the mandatory death sentence under Section 296(2) is unconstitutional; as a first offender, the appellant's death sentence was set aside and replaced with 20 years imprisonment
The court followed the Supreme Court's holding in Muruatetu paragraph 69 and this Court's decision in William Okungu Kittiny that the reasoning applies mutatis mutandis to Section 296(2). Noting the appellant was a first offender and the jurisprudence had changed, the Court exercised its discretion and substituted twenty years' imprisonment running from the date of the trial court's sentence.
Legal principles established
#- The time of recovery of stolen goods for purposes of the doctrine of recent possession may vary from case to case depending on the ease with which the property can move from person to person; a fixed short period is not required
- Once the prosecution establishes the elements of recent possession, the burden shifts to the accused under Section 111 of the Evidence Act to give a reasonable explanation in rebuttal; failure to do so permits an inference of theft or guilty receiving
- Proof of any one of the three ingredients of robbery with violence under Section 296(2) of the Penal Code is sufficient to sustain a conviction
- Following Muruatetu and Kittiny, the mandatory death sentence under Section 296(2) of the Penal Code is inconsistent with the Constitution and courts retain discretion in sentencing
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence allowed
- 3.Sentence of death set aside and substituted with twenty (20) years imprisonment with effect from 18th February, 2014
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- HCCR. No. 20 of 2014
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Setting aside the conviction for robbery with violence
All elements of the offence, including recent possession, were properly established and the appellant failed to give a reasonable explanation for possession of the stolen mobile phone
Costs
No costs order 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.
Accordingly, the sentence of death is set aside and in substitution therefor, the appellant is sentenced to twenty (20) years imprisonment with effect from 18th February, 2014 when he was sentenced by the trial court.
The upshot is that the appeal against conviction is dismissed while the appeal against sentence is allowed.
a) that the property was found with the suspect; b) that the property was positively identified by the complainant; c) that the property was recently stolen from the complainant.
By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about.
jurisprudence in this country has since changed and mandatory sentences as prescribed by Parliament are subject to the discretion of courts.
Issues in the judgment
#Paragraph numbering is duplicated - two paragraphs are numbered [27]
Sentence dated 3rd October 2014 in the appeal header but the court records conviction/sentencing date of 18th February 2014 in the final orders
The first appellate court's judgment date (3rd October 2014) precedes the trial court sentencing date recorded in the final orders (18th February 2014), suggesting a typographical error in one of the dates
Githinji, JA is listed in the coram but the judgment notes he had retired before delivery
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Appollo Olenja Apitsa v Republic [2020] KECA 681 (KLR)", Case Analysis (2020). Criminal Appeal No. 34 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/681/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.