Case Metadata |
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| Case Number: | Criminal Appeal 531 of 1981 |
|---|---|
| Parties: | Thomas Matheka v Republic |
| Date Delivered: | 14 Dec 1983 |
| Case Class: | Criminal |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | John Henry Sydney Todd |
| Citation: | Thomas Matheka v Republic [1983] eKLR |
| Advocates: | CW Gatonye for Respondent |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | CW Gatonye for Respondent |
| Case Summary: | Matheka v Republic High Court, at Nairobi December 14, 1983 Todd J Criminal Appeal No 531 of 1981 Evidence - accomplice evidence - meaning of - nature of - sufficiency of accomplice evidence - whether such evidence can be relied on to convict joint offender - the need for corroboration by independent witness – when corroboration is required. The appellant was charged with two others with stealing a cow contrary to section 275 of the Penal Code (cap 63). The appellant was convicted after trial and sentenced to three years’ imprisonment, being the maximum sentence that can be imposed under section 275. The other two were acquitted. The trial magistrate had heavily relied on the evidence of one of the coaccused in convicting the accused person. The appellant appealed to the High Court. According to the appellate judge, it was not clear how the coaccused came to know what he purported to testify to, and that his evidence was in need of corroboration. Held: 1. Evidence given by a co-accused person against another should only be considered if it is evaluated and found believable and if it is corroborated by independent evidence pointing to the guilt of the accused and also if it implicates the person giving it (R v Hamisi bin Saidi & Another (1942) 10 EACA 50). 2. When one or more of jointly accused persons makes a confession which affects the maker and the other co-accused it, is accomplice evidence. 3. The court may take accomplice evidence into consideration against all the accused persons including the giver of the evidence, provided that the evidence by itself would be sufficient to justify the conviction of the giver for the offence charged. Appeal allowed. Cases R v Hamisi bin Saidi & Another (1942) 10 EACA 50 Statutes Penal Code (cap 63) section 275 Advocates CW Gatonye for Respondent |
| History Advocates: | One party or some parties represented |
| Case Outcome: | Appeal Allowed. |
| 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 |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 531 OF 1981
THOMAS MATHEKA..............................................................APPELLANT
VERSUS
REPUBLIC............................................................................RESPONDENT
JUDGMENT
The appellant, Thomas Matheka, was charged with Boniface Kizomba Wambua and Paul Ngei with stealing a cow contrary to section 275 of the Penal Code on February 16, 1983 being the property of Paul Yenge Nguli, his father. The appellant was convicted after trial and sentenced to three years’ imprisonment being the maximum sentence that can be imposed under section 275 of the Penal Code. The other two accused were acquitted.
The accused, Boniface Kizomba Wambua, in his statutory statement to court, said that it was the appellant who sold him the cow on February 16, 1983 being the day it was found to be missing from the complainant’s premises. On the same day Boniface Kizomba said he sold the cow to James Mutiso who in turn sold it to Kiarie Mubova where it was found. When Paul Ngei came to testify he elected to give evidence on oath. His evidence upon which the learned trial magistrate has heavily based his finding does not upon reading it amount to anything for he says:
“When these cows got lost my father PW 1 asked me whether I know where the cows were I said the cows were being taken by Thomas and Boniface and then sold at Kithioko.”
It is not at all clear how Paul Ngei came to know about what he purported to testify to: was it hearsay? Did he see he does not say so his evidence is valueless. In any event he was prepared to keep quiet about the matter which makes his evidence suspect and in need of corroboration.
Evidence given by a co-accused person against another should only really be considered if it is believed and if it is corroborated in a material particular by independent evidence pointing to the guilt of the accused and if it also implicates the person giving the evidence of the crime, which was not so in this case. In this regard amongst other cases I refer to the case of R v Hamisi bin Saidi & Another (1942) 10 EACA 50.
“When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as well as against such other person as well as against the person who makes such confession. Such a statement by an accused can only be used as evidence against his co-accused if it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person against whom it is tendered.”
The appeal of the appellant must accordingly be allowed and is hereby allowed and the conviction entered against the appellant is quashed and the sentence imposed is set aside.
Dated and Delivered at Nairobi this 14th day of December 1983.
J.H.S.TODD
JUDGE
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