Patrick Atemo Msembe & Another V Republic  EKLR
|Criminal Appeals 619 & 621 of 1998||04 Aug 2003|
Tom Mbaluto, Benjamin Patrick Kubo
High Court at Nairobi (Milimani Law Courts)
Patrick Atemo Msembe & Ronald Ezekiel Mwachia v Republic
Patrick Atemo Msembe & another v Republic  eKLR
Patrick Atemo Msembe & another v Republic
High Court, at Nairobi August 4, 2003
Mbaluto & Kubo JJ
Criminal Appeals Nos 619 and 621 of 1998 (Consolidated)
(From original conviction and sentence in Criminal Case No 7201 of 1986 of the Principal Magistrates Court at Kibera)
Criminal Practice and Procedure – identification parade – how identification parade should be conducted - parade of ten people – witness alleging to identify the accused - no description given of the appearance of the other persons in the parade - whether parade properly conducted.
Evidence - circumstantial evidence - test such evidence must meet in order to form a basis for conviction - on whom burden of proof lies.
Criminal law - alibi - burden of proof rests with prosecution - parties to offences - aiding or abetting an offender - renders one party to offence.
Criminal law - possession - meaning of possession - when knowledge can constitute possession.
The two appeals arose from the same case in the Principal Magistrate’s court at Kibera. They were consolidated for hearing. The first and second appellants together with one Jackson Mpemba were jointly charged before the lower court in count 1 with the offence of robbery with violence contrary to section 296(2) of the Penal Code (cap 63). They appealed to the court against conviction and sentence. The first appellant grounded his appeal on the argument that the trial magistrate had erred both in law and fact in relying on identification evidence, uncorroborated prosecution evidence and hearsay evidence. The second appellant argued that the prosecution relied on inconclusive circumstantial evidence and the inattention to his defence of alibi.
1. The manner in which the identification parade was conducted in this case fell short of the identification guidelines as laid down in the case of R v Mwango s/o Manaa 2 (1936) EACA 29.
2. Where any fact is desposed to, as discovered in consequence of information received from a person accused of any offence, so much of information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.
3. It is trite law that an accused who raises an alibi defence does not assume the burden of proving it. Where a defence of alibi is raised by an accused in his defence, the burden is on the prosecution to rebut the same.
4. In order to justify a conviction founded on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
6. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.
7. When an offence is committed, every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it.
8. Knowledge about a stolen item in the custody of one person can justifiably be deemed to constitute possession of that item on the part of the person having such knowledge within the meaning of section 4 of the Penal Code (cap 63).
First appellant’s appeal allowed. Second appellant’s appeal dismissed.
1. R v Mwango s/o Manaa (1936) EACA 29
2. Mwakawanga v Republic  EA 6
3. Kiarie v Republic  KLR 739
4. Musoke v R  EA 715
5. R v Kipkering arap Koske & another (1949) 1 EACA 135
1. Penal Code (cap 63) section 20(1)(b), 296(2), 322(2), 392
2. Criminal Procedure Code (cap 75) section 350
3. Evdence Act (cap 80) section 31, 127(2)(ii)
Miss Nyamasi for the Respondent.