[1984] KEHC 9 (KLR)
The court found that the prosecution failed to dislodge the appellants' defence of alibi and that the evidence identifying the stolen property was doubtful, as the complainant did not positively identify the recovered item as hers. The convictions were therefore unsafe and could not be sustained. The burden of proof...
Source-derived case information.
- Citation
- [1984] KEHC 9 (KLR)
- Parties
- Appellant: Wambia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 745 & 746 of 1983
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Housebreaking, Stealing, Defence of Alibi, Burden of Proof, Identification of Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wambia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution discharged the burden of disproving the appellants' defence of alibi.
- 2 Whether the evidence identifying the stolen property was sufficient to sustain a conviction.
- 3 Whether the convictions were based on credible and reliable evidence.
Ratio Decidendi
The court found that the prosecution failed to dislodge the appellants' defence of alibi and that the evidence identifying the stolen property was doubtful, as the complainant did not positively identify the recovered item as hers. The convictions were therefore unsafe and could not be sustained. The burden of proof remained on the prosecution throughout, and this burden was not discharged in the circumstances of the case. Consequently, the convictions were quashed and the sentences set aside.
Court Disposition
appeal_allowed
Orders
- Convictions quashed.
- Sentences set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CRIMINAL APPEAL NO 745 & 746 OF 1983
Wambia.......................Appellant
v
Republic..............................Respondent
Criminal law - housebreaking and stealing - defence of alibi - onus of dilodging defence. The two appellants were jointly charged with the offence of housebreaking and stealing contrary to sections 304(1) and 279(b) of the Penal Code. The item alleged to have been stolen property was recovered but the complainant did not identify it as her property. The appellants had set up a defence of alibi. the appellants appealed. They weree convicted after thehearing and both sentenced to 5 years’ imprisonment on each count and 5 strokes (light cane) corporal punishment. Held: 1. The defence of alibi raised placed an onus upon the prosecution to dislodge it and this was not done.
2. Teh appellants were convicted on doubtful evidence and the convictions could not be sustained.
Appeals allowed. Cases 1. Sekitoleko v Uganda (1967) EA 531 at p 533 Approved & Applied
2. R v Johnson (1961) 3 All ER 969
Statutes Penal Code (cap 63) section 279(b) and 304(1) Advocates
JM Njongoro (state counsel) for Respondent. July 31, 1984, O'Kubasu J delivered the following Judgment. These two appeals have been consolidated. The two appellants were jointly convicted on a charge of house breaking and stealing contrary to section 304(1) and 279(b) of the Penal Code (cap 63). Each was sentenced to 5 years’ imprisonment on each limb of the charge and five strokes of the light cane on the second limb of the charge. The sentences were ordered to run concurrently.
The learned state counsel did not wish to support these convictions as he argued that gas cylinder was not positively identified by the complainant. I have carefully considered the evidence on record and I agree with the submissions of the learned state counsel. Indeed when what was alleged to be stolen property was recovered the complainant did not identify what was hers.
The appellants raised defence of alibi and it was upon the prosecution to dislodge that defence. In Sekitoleko v Uganda (1967) EA 531 at p 533 Sir Udo Udoma C J held:-
“As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is an alibi or something else. That burden always rests on the prosecution.”
In R v Johnson (1961) 3 All ER 969 the general principle of law applicable to defence of an alibi was enunciated. It was laid down as a general rule of law that if an accused puts forward an alibi as an answer to a criminal charge he does not thereby assume a burden of proving the defence and that the burden of proving his guilt remains throughout on the prosecution.” In view of the foregoing I find that the two appellants were convicted on doubtful evidence. Hence these appeals are allowed, convictions quashed and the sentences imposed set aside. I order that the two appellants be released from prison immediately unless otherwise lawfully held. Order accordingly.