Patrick Siana v Republic

Court of Appeal, at Mombasa July 28, 1993

Kwach, Omolo & Akiwumi JJ A

Criminal Appeal No 67 of 1993

(Appeal from a judgment of the High Court of Kenya at Mombasa

(Mr Justice Wambilyanga) dated 9th July, 1993,

in HC CR A No 202 of 1993)

Criminal Practice and Procedure – charge – accused charged with offence of conveying property suspected to have been stolen where the owner was known and the fact of stealing established – whether charge was proper – section 323 Penal Code (cap 63).

Criminal law – conveying property suspected to have been stolen – whether it is proper to prefer charges where a charge of stealing or receiving could be made.

The appellant was convicted on his own plea of guilty of the offence of conveying property suspected to have been stolen contrary to section 323 of the Penal Code. His first appeal against conviction and sentence was dismissed by the High Court.

On second appeal to the Court of Appeal he argued that his conviction was wrong because at the time of his arrest the owner of the property allegedly stolen by him was known hence it was not proper to charge him with the offence of conveying property suspected to have been stolen.

Held:

1. The charge of possession of property reasonably suspected of having been stolen should never be made where a charge of stealing or receiving the property could be made.

2. The goods were known to have been stolen and the police knew who the owner was. It was not open to them to lay a charge under section 323 of the Penal Code. The appellant should have been charged with either theft or handling stolen property.

Appeal allowed, order that appellant be arrested and charged with the charge disclosed by the facts.

Cases

1. Adan v Republic [1973] EA 445

2. Mohammed v Republic [1971] EA 42

Statutes

Penal Code (cap 63) section 323

Advocates

Mr Magolo for the Appellant

Gerishom Ombaka v Republic

Court of Appeal, at Mombasa January 27, 1993

Gachuhi, Gicheru & Cockar JJ A

Criminal Appeal No 111 of 1992

(Appeal from a judgment of the High Court of Kenya at Mombasa

(Justice Shields) dated 20th November, 1991

in HC CR A No 413 of 1991)

Evidence - child/minor - evidence of a child - evidence given on oath - evidence of two complainant children - whether such evidence needed to be corroborated in order for it to form a basis for conviction in the absence of any other evidence - whether the evidence of one complainant could corroborate that of the other - Evidence Act (cap 80) section 124.

The appellant was charged and convicted of two counts of the offence of indecent assault on a female and sentenced to five years imprisonment.

His conviction was based solely on the evidence of the child complainants who gave evidence on oath. No evidence was adduced by the prosecution nor any medical reports produced showing whether the complainants or the appellant were suffering from any communicable disease. The doctor who examined the complainants was not called to give evidence.

In supporting the conviction, State Counsel relied on the English position which states that where a child has given evidence on oath, corroboration is not mandatory.

Held:

1. The law in England was that where the evidence of a child is not given on oath corroboration is required by statute. Where the evidence is given on oath corroboration is not essential in law. Kenya’s Evidence Act was not in line with English law.

2. Section 124 of the Evidence Act provided that where the evidence of a child of tender years was admitted in accordance with section 19 of the Oaths and Statutory Declarations Act, the accused would not be liable to be convicted on such evidence unless it was corroborated by other material evidence.

3. The evidence of the complainants needed corroboration. They could not corroborate each other. The conviction of the appellant on uncorroborated evidence could not be supported.

Appeal allowed.

Cases

No cases referred to

Statutes

1. Penal Code (cap 63) section 144(1)

2. Evidence Act (cap 80) section 124

Texts

Butler, TRF; Garcia, M (Eds) (1969) Archbold: Pleading, Evidence & Practice in Criminal Cases; London: Sweet & Maxwell 37th Edn para 2905