Case Metadata |
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| Case Number: | Criminal Appeal 62 of 1994 |
|---|---|
| Parties: | Dan Owino Owano v Republic |
| Date Delivered: | 18 Jul 1994 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Mombasa |
| Case Action: | Judgment |
| Judge(s): | Riaga Samuel Cornelius Omolo, Akilano Molade Akiwumi, John Mwangi Gachuhi |
| Citation: | Dan Owino Owano v Republic [1994] eKLR |
| Advocates: | Mr Magolo for the Appellant |
| Case History: | (Appeal from a judgment of the High Court of Kenya at Mombasa (Mr Justice ICC Wambilyanga) dated 8th June, 1994, in HCCRA No 537 of 1993) |
| Court Division: | Criminal |
| County: | Mombasa |
| Advocates: | Mr Magolo for the Appellant |
| History Docket No: | HCCRA 537 of 1993 |
| History Judges: | Isaac Charles Cheskaki Wambilyangah |
| Case Summary: | Owano v Republic Court of Appeal, at Mombasa July 18, 1994 Gachuhi, Omolo & Akiwumi JJ A Criminal Appeal No 62 of 1994 (Appeal from a judgment of the High Court of Kenya at Mombasa (Mr Justice ICC Wambilyanga) dated 8th June, 1994, in HCCRA No 537 of 1993) Criminal law – narcortic drugs – possession of – drugs found in a room occupied by the appellant alone – whether the fact that the room was a public place displaced the presumption of possession. Criminal Practice and Procedure – witnesses testifying that drugs were found among the appellants’ clothes – appellant choosing to remain silent – whether trial magistrate was wrong in believing the witnesses’ testimony. The appellant was convicted on the evidence of two prosecution witnesses who were police officers and who arrested the appellant from a room he was occupying alone and from which drugs were found. During the trial the officers testified how the drugs were found in the appellant’s room among his clothes. The appellant however did not cross-examine the officers on their testimony. The trial magistrate believed the police officer’s testimony and convicted the appellant. His first appeal to the High Court was rejected and on second appeal it was argued on his behalf that the room being a public place there was no evidence that the appellant was the only occupant of the room. Held: 1. There was evidence that the appellant was alone in the room. The heroin was found among clothes identified as belonging to the appellant. He heard the two police officers give that evidence but he elected to say nothing. 2. The accused was entitled to keep quiet but the magistrate was equally entitled to believe the evidence of the two officers and if that evidence was believed, it proved beyond a reasonable doubt that the appellant was the only person who could have possessed the drug. Appeal dismissed. Cases No cases referred to. Statutes No statutes referred. Advocates Mr Magolo for the Appellant |
| History Advocates: | One party or some parties represented |
| History County: | Mombasa |
| Case Outcome: | Appeal Dismissed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT MOMBASA
( Coram: Gachuhi, Omolo & Akiwumi JJ A )
CRIMINAL APPEAL NO. 62 OF 1994
BETWEEN
DAN OWINO OWANO.........................................................APPELLANT
AND
REPUBLIC.........................................................................RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Mombasa (Mr Justice ICC Wambilyanga) dated 8th June, 1994, in HCCRA No 537 of 1993)
JUDGMENT
The evidence on which the appellant was convicted was that two police officers who gave evidence as PW1 and PW2 visited room 13 at a Malindi hotel. In that room they found the appellant. He was alone. The policemen introduced themselves as officers and said they wanted to search the room.
They did so and in a basket containing the clothes of the appellant they found a packet which contained a substance and when that substance was later examined, it was found to be heroin. The appellant was there and then arrested and subsequently charged with possession of the heroin.
Having heard the evidence of the two police officers, the magistrate believed them and convicted the appellant of the charge. He unsuccessfully appealed against his conviction to the High Court and he now appeals to us a second time. He has listed three grounds of appeal. The first one is that the lower courts erred in finding that there was sufficient evidence to prove possession of the drug by the appellant. Mr Magolo now tells us that the room was, as it were, a public place, and that there was no evidence that the appellant was the only occupant of the room. The heroin was found among clothes identified as belonging to the appellant. He heard the two police officers give that evidence but he elected to say nothing. He was entitled to keep quiet but the magistrate was equally entitled to believe the evidence of the two officers and if that evidence was believed, it proved beyond a reasonable doubt that the appellant was the only person who could have possessed the drug. In the circumstances in which the heroin was found, the appellant was clearly in possession of the drug and ground one in the memorandum of appeal lacks any merit at all. The second ground which complains that the burden of proof was shifted to the appellant is equally frivolous as we can find nowhere in the magistrate’s judgment to support that contention. All the learned magistrate did was to accept the wholly unchallenged evidence of the two witnesses and that cannot amount to a shifting of the burden of proof. There is equally no merit in ground three and Mr Magolo for the appellant is right in abandoning it. Sentence is not a matter for this Court, as it was lawful. This appeal fails in toto and we order it dismissed. That shall be our order.
Dated and Delivered at Mombasa this 18th day of July 1994.
J.M.GACHUHI
..................................
JUDGE OF APPEAL
R.S.C.OMOLO
..................................
JUDGE OF APPEAL
A.M.AKIWUMI
...................................
JUDGE OF APPEAL
I certify that this is a true copy of
the original.
DEPUTY REGISTRAR
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