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JudgmentDANIEL KIMERA THUVA VS The Republic4 min read

DANIEL KIMERA THUVA VS The Republic

High Court at Malindi High Court · · M Thande


  1. The Appellant was tried and convicted of the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. He was sentenced to 10 years imprisonment.
  2. Being dissatisfied with both the conviction and sentence he preferred this Appeal.
  3. The Appeal was canvassed by way of written submissions.
  4. The Respondent conceded the Appeal on the ground that the offence was committed at night and that the Appellant was not identified. Further that the allegation that the Appellant left his shoe at the scene was not proved. Additionally, that although a shoe allegedly left by the Appellant at the scene was produced, there was no cogent evidence that the same belonged to the Appellant and no one was called to say so. The Respondent concluded that the conviction of the Appellant was not safe and should be set aside. 
  5. From the record, it is clear that none of the witnesses identified the Appellant at the time of commission of the offence. In spite of there being moonlight the night of the incident, the complainant did not recognize the Appellant who is his neighbor. The only link of the Appellant to the offence is that at a party on 2.12.23 at the complainant’s home, the Appellant stated that he is the one who robbed and attacked the complainant and that he had left his open shoe during the incident. This was the testimony of the complainant, his brother PW3 and friend, PW4. 
  6. PW5, the investigating officer stated that the Appellant approached the complainant demanding a return of his shoe left at the scene and warned the complainant that in future he should not resist any theft lest he be killed.
  7. The conviction of the Appellant was anchored on the alleged confession of the Appellant at the party at the Complainant’s home. This confession was denied by the Appellant in his defence. Even if it were the case that the Appellant admitted to the confession, such confession would still have to comply with the requirements of the law before admission.
  8. Section 25 of the Evidence Act defines a confession as follows:

A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

  1. Confessions are generally inadmissible. However, Section 25A of the Act stipulates the conditions under which a confession may be admissible:
  2. A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.
  3. It can be seen from the above provision that a confession made by an accused person will only be admitted if made before a court or before a police officer, and in the presence of a third party of the person’s choice. Such confession may not be made before the investigating officer or a police officer below the rank of inspector of police.
  4. In the case of Republic v Mohammed & another (Petition 39 of 2018) [2019] KESC 48 (KLR) (15 March 2019) (Judgment) (with dissent - MK Ibrahim & SC Wanjala, SCJJ), the Supreme Court stated:

While, as stated, a confession can of itself found a conviction, when a court is confronted with an admission, which does not amount to a confession under Section 25A of the Evidence Act, it should not base its conviction solely on such an admission. Instead, it should look for clear and credible corroboration of such an admission.

  1. Similarly, in Parvin Singh Dhalay v Republic [1997] eKLR, the Court of Appeal considered a confession made to a private person and stated: stated:

But a confession to criminality remains a confession whether it be made to a person in authority or to a private person and once the confession is repudiated or retracted or both repudiated and retracted, the confession requires corroboration unless the court is, for cogent and solid reasons, satisfied that the confession, though not corroborated, cannot be but true. 

  1. The confession herein was made to the complainant and PW3 and PW4 who are private persons. They are also a brother and friend of the complainant. The corroborating evidence was the shoe.  Although the complainant and PW3 stated in their testimony that the shoe was before the court and the same was produced by PW5, no evidence was availed to prove that the same belonged to the Appellant. I also agree with the Appellant that PW5 ought to have taken steps to obtain the other shoe to confirm that the shoe produced in court did in fact belong to the Appellant.
  2. After analyzing the evidence on record I find that without identification of the Appellant and any evidence showing that the shoe (Pxh 5) belonged to the Appellant, the conviction was not safe.  
  3. In the result, the appeal is allowed, conviction quashed and sentence set aside. The Appellant is hereby set free forthwith, unless otherwise lawfully detained.

DATED SIGNED and DELIVERED in MALINDI this 7th day of February 2025

 

    DANIEL KIMERA THUVA VS The Republic DANIEL KIMERA THUVA VS The Republic