[1994] KECA 79 (KLR)
The Court of Appeal held that the evidence of the two police officers, which was unchallenged and found credible by the trial magistrate, established beyond reasonable doubt that the appellant was in possession of the heroin. The heroin was discovered among the appellant's clothes in a hotel room where he was found...
Source-derived case information.
- Citation
- [1994] KECA 79 (KLR)
- Parties
- Appellant: Dan Owino Owano; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 62 of 1994
- Procedural Posture
- Criminal Appeal / Second Appeal From Conviction and Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Possession of Narcotics, Burden of Proof, Credibility of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dan Owino Owano
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the evidence was sufficient to prove possession of heroin by the appellant beyond reasonable doubt.
- 2 Whether the burden of proof was improperly shifted to the appellant.
Ratio Decidendi
The Court of Appeal held that the evidence of the two police officers, which was unchallenged and found credible by the trial magistrate, established beyond reasonable doubt that the appellant was in possession of the heroin. The heroin was discovered among the appellant's clothes in a hotel room where he was found alone. The appellant elected to remain silent in the face of this evidence, and the magistrate was entitled to accept the officers' testimony. The appellate court found no merit in the argument that the burden of proof was shifted to the appellant, as the magistrate merely accepted uncontroverted prosecution evidence. The court concluded that the conviction was proper and...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed in its entirety.
Full Case Text
Judgment text and source record
26 paragraphs
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 totoand 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