[1983] KEHC 29 (KLR)
The court held that the conviction was unsafe because the appellant was not asked to explain his possession of the suspected stolen property, as required by section 323 of the Penal Code. The charge was also defective for failing to specify that the suspicion was reasonable. The court relied on the precedent set in...
Source-derived case information.
- Citation
- [1983] KEHC 29 (KLR)
- Parties
- Appellant: Kimanzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 765 of 1982
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed; sentence set aside
- Legal Topics
- Conveying Stolen Property, Plea Procedure, Burden of Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimanzi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge under section 323 of the Penal Code was properly framed to include reasonable suspicion that the property was stolen or unlawfully obtained.
- 2 Whether the appellant was given an opportunity to explain his possession of the suspected stolen property as required by law.
- 3 Whether a conviction can stand where the accused is not asked for an explanation under section 323 of the Penal Code.
Ratio Decidendi
The court held that the conviction was unsafe because the appellant was not asked to explain his possession of the suspected stolen property, as required by section 323 of the Penal Code. The charge was also defective for failing to specify that the suspicion was reasonable. The court relied on the precedent set in Koech v Republic, which mandates that an accused must be given an opportunity to provide an account for possession before a conviction can be entered. Since this procedure was not followed, the appellant's plea of guilty was not valid, and the conviction could not stand. The court further determined that a retrial would not be appropriate in the circumstances, referencing the...
Court Disposition
conviction quashed; sentence set aside
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CRIMINAL APPEAL NO 765 OF 1982
KIMANZI …………….......……………..APPELLANT
VERSUS
REPUBLIC……………………………RESPONDENT
JUDGMENT
The appellant was convicted by the learned district magistrate at Nairobi for conveying stolen property contrary to section 323 of the Penal Code (cap 63). The charge read as follows:
On August 2, 1982 at Nairobi within Nairobi Area having been detained by PC Otieno and Makokha as a result of the powers conferred to them under section 26 of the Criminal Procedure Code was found conveying twenty empty cassettes, and one electric plug suspected to have been stolen or unlawfully obtained.
The charge did not specify that the suspicion that the property was stolen or unlawfully obtained was reasonable. This is particularly important in such cases since in the case of Koech v Republic[1968] EA at page 109 the whole procedure of putting a charge under section 323 of the Penal Code to the accused has been clearly outlined by the then Chief Justice Sir John Ainley. The point which he makes very clear under section 323 of the Penal Code is that even though the accused admits all the assertions which are set out in the charge and assuming for the time being that the charge is properly drawn he must still be asked whether he has any explanation for his possession of the property. The reason for this is because he commits no offence until he fails to give an account to the satisfaction of the court of how he came by this suspected stolen property. If the court has failed to ask him to give such explanation he cannot be convicted of the offence. Therefore the appellant’s apparent plea of guilty is no plea of guilty and he should not have been convicted. It would be wrong, I think, in the circumstances to order this matter to go for retrial for similar reasons as those set out at the end of the judgment in Koech v Republicabove cited even bearing in mind that he is on bail.
The conviction will therefore be quashed and the sentence set aside.
Dated and Delivered at Nairobi this 26th January, 1983
D.C. PORTER
………………….
Ag JUDGE