[2021] KEHC 5517 (KLR)
The court found that the only evidence connecting the appellant to the offences was an electronic receipt found at the scene, which was not accompanied by the certificate required under section 106B(4) of the Evidence Act. As a result, the receipt was inadmissible and should not have been relied upon to convict the...
Source-derived case information.
- Citation
- [2021] KEHC 5517 (KLR)
- Parties
- Appellant: Mohammed Hussein Warsame; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 42 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- DW Mbuteti
- Legal Topics
- Admissibility of Evidence, Circumstantial Evidence, Wildlife Offences, Electronic Records, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Hussein Warsame
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the electronic receipt was admissible as evidence under section 106B of the Evidence Act.
- 2 Whether the conviction could stand in the absence of a valid certificate for the electronic evidence.
- 3 Whether the circumstantial evidence was sufficient to link the appellant to the offences.
Ratio Decidendi
The court found that the only evidence connecting the appellant to the offences was an electronic receipt found at the scene, which was not accompanied by the certificate required under section 106B(4) of the Evidence Act. As a result, the receipt was inadmissible and should not have been relied upon to convict the appellant. With no other evidence linking the appellant to the crimes, the convictions could not stand. The court therefore allowed the appeal, quashed the convictions, and set aside the sentences imposed.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed in its entirety.
- The convictions are quashed and the sentences set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO 42 OF 2019
MOHAMMED HUSSEIN WARSAME..............................................................APPELLANT
VERSUS
REPUBLIC.........................................................................................................RESPONDENT
(From original Conviction and Sentence in Nanyuki CM
Criminal Case No 158 of 2016 – Njeri Thuku, PM)
J U D G M E N T
1. The Appellant, MOHAMMED HUSSEIN WARSAME, was convicted after trial of three offences as follows –
Count I: Killing an animal with intent to steal contrary tosections 289 and 275 of the Penal Code.
Count II:Hunting a protected animal contrary to sections
22(1) (a) and 56(1) (a)of the Wildlife (Conservation and Management) Act, Cap 376.
Count III: Hunting a game animal contrary to section 22(1) (b)of the Wildlife(Conservation and Management) Act,Cap 376.
The three offences were alleged to have been committed on 29th and 30th June 2011 at Ol Pejeta Ranch within Laikipia County jointly with others not before court, and involved one rhinoceros and its two horns (Count I), another rhinoceros (Count II) and one buffalo (Count III).
2. On 10/09/2019 the Appellant was sentenced to 2 years, 7 years and 3 years imprisonment respectively on the three counts, the sentences to run consecutively – a cumulative sentence of 12 years imprisonment. He has appealed against both conviction and sentence. Learned counsel for the Respondent does not support the convictions.
3. I have read through the record of the trial court in order to evaluate the evidence tendered and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I neither heard nor saw the witnesses as they testified, and I have given due allowance for this fact.
4. The only evidence connecting the Appellant to the offence was an electronic receipt generated by the computers of a Nakumatt Supermarkets outlet at Meru which bore his name and his smartcard number. This receipt was found at the scene of the crimes. On the face of it this receipt was powerful circumstantial evidence of the Appellant’s presence at the scene of crime, unless he offered a plausible explanation for his receipt being found there.
5. Now, there are stringent conditions that govern the admissibility of electronic records in legal criminal proceedings. These conditions are set out at some length in section 106B of the Evidence Act, Cap 80. One of those conditions is a certificate issued under subsection (4) of that section. Unfortunately in this case, there was no such certificate produced in evidence along with the electronic receipt. That receipt therefore did not meet the requisite legal threshold for its admission in evidence, and should not have been relied upon to convict the Appellant. Learned counsel for the Respondent therefore properly conceded the appeal.
6. I will in the event allow the appeal in its entirety, quash the convictions and set aside the sentences imposed. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 30TH DAY OF JUNE 2021
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 1ST DAY OF JULY 2021