[1983] KEHC 61 (KLR)
The court held that the conviction was unsafe because the charge did not specify that the suspicion was reasonable and, more importantly, the appellant was not asked to explain his possession of the suspected stolen property as required under Section 323 of the Penal Code. The court relied on the precedent in Koech...
Source-derived case information.
- Citation
- [1983] KEHC 61 (KLR)
- Parties
- Appellant: Peter Moses 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, Section 323 Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Moses 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 court erred in convicting the appellant without asking for an explanation regarding possession of the suspected stolen property.
- 3 Whether the appellant's plea of guilty was valid in the absence of the required inquiry.
Ratio Decidendi
The court held that the conviction was unsafe because the charge did not specify that the suspicion was reasonable and, more importantly, the appellant was not asked to explain his possession of the suspected stolen property as required under Section 323 of the Penal Code. The court relied on the precedent in Koech v R, which mandates that an accused must be given an opportunity to provide an account of how he came by the property before a conviction can be entered. The failure to follow this procedure rendered the plea of guilty invalid and the conviction a nullity. The court further found that a retrial would not be appropriate in the circumstances, even though the appellant was on bail.
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
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
APPELLATE SIDE
CRIMINAL APPEAL NO 765 OF 1982
(From Original Conviction and Sentence in Criminal Case No 1919 of 1982 of the 1st
class magistrate’s court at Nairobi) (R M Desai Esq)
PETER MOSES KIMANZI …………………..…………..……………. APPELLATE
VERSUS
REPUBLIC ………………………………….……………………….. RESPONDENT
CORAM; PORTER AG J
J Kioko for appellant
Bwongonga (State Counsel) for 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 20 empty cassettes, and 1 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 R [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 R above cited even bearing in mind that he is on bail.
The conviction will therefore be quashed and the sentence set aside.
26. 1.1983
D C PORTER
AG JUDGE