Dennis Karani Njeru & Twaha Muchiri Ita v Republic [2014] KEHC 1106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 121 OF 2013 CONSOLIDATED  WITH NO. 122 OF 2013

DENNIS KARANI NJERU …………………………...1ST APPELLANT

TWAHA MUCHIRI ITA …………………………….2ND APPELLANT

VERSUS

REPUBLIC……………………….....…………………..RESPONDENT

(Appeal from the original conviction and sentence in Criminal Case Number 1243 of 2012  in the Principal  Magistrate’s court at Gichugu      HON. T.M.  Mwangi  (PM)

JUDGMENT

DENNIS KARANI  AND  TWAHA MUCHIRI  the appellants  herein were charged  before the principal magistrate’s court  at Gichugu  criminal case NO. 1243 of 2012  with four counts , two of which were robbery  with violence contrary to Section 296(2) of the Penal Code , the third count  being handling  stolen goods contrary to Section 322(1) and (2)  of the Penal Codeand in  addition  count four in respect of 1st appellant, being  in possession of canabis sativa(bhang) contrary to Section 2(a)  of the Narcotic Drugs and Psychotropic Substances   Control Act  NO. 4 of 1994.  After trial, the trial court acquitted the appellants on  the first two counts of robbery  with violence  but found  both of them guilty  of  count 3 and sentenced  them  to serve  5 years imprisonment each while  the first appellant  herein DENNIS KARANI NJERU  was found guilty of the 4th count  and convicted  to serve 1 ½ years  imprisonment thereof.

Both the appellants  were dissatisfied  with both the conviction and the sentence  meted out against them and filed separate  appeals  which were consolidated and heard on the same day.  The appellants however  filed separate submissions  in support  of their  respective petition of appeal.

Dennis Karani Njeru1st appellant  listed the following grounds of appeal in his petition.

The he  pleaded not guilty to the charge.

That  the trial magistrate erred  in law and fact by failing  to consider that the case was  not proven  beyond any reasonable  doubt.

That the Learned trial magistrate erred in law and in fact  by failing to consider that the prosecution’s witnesses gave incoherent and uncorraborative  evidence .

That the Learned magistrate erred in law and facts when  he convicted and sentenced  the appellants  while relying on contradicting  and inconsistent evidence.

That the Learned trial magistrate erred in law and fact when  he convicted and sentenced  the appellant  on handling charges despite  the fact that  he was not found in possession of the phone at the time  of arrest.

That the Learned trial magistrate erred in law and in fact when  he failed to consider that the said bhang  was in question  on how  he arresting  officer differed in its amount  and the circumstances  of its possession  in the appellants clothing .

That the Learned trial magistrate erred in law and  fact when  he failed to consider  the 1st appellant’s defence .

It is on the basis of the above  grounds that the 1st appellant  asked this court to quash  his conviction  and set aside sentences  meted out against him.

The 2nd appellant Twaha Muchiri  on the other hand  has listed five grounds on his petition  .  They are as follows:

The he pleaded not guilty .

That the trial magistrate erred in law and fact by convicting  the appellant  on a defective charge sheet.

That the trial magistrate  erred in law and in fact y passing  a conviction on prosecution evidence that was brought  with contradictions  and inconsistence.

That the Learned magistrate erred in law and fact  handing  him a harsh sentence.

That the mitigation  was not considered.

The 2nd appellant  on these grounds  urged this court  to quash the conviction and set aside  the sentence.

The state through Mr Omayo opposed this appeal.  He gave a chronology  of events during and after the robbery    that  took place on 25th November 2012 at night where  the complainants  were  violently  robbed of the following items;

H.P. Monitor

A Sony DVD machine .

Two  mobile phones  of make Alcatel and Nokia .

Cash  of kshs 1200/-.

Mr Omayo  urged this court to find  that the  appeal lacked merit since  the evidence adduced  at the trial court  was overwhelming and contrary  to submissions  of the appellants  there  were no contradictions

A brief  background of the case  shows that the complainant PW1 (PATRICK KAMAU KARUMBU) and his  wife PW2 (MARY WANJIKU KAMAU) were woken up  by armed robbers  at 2. 30 am on the night of   25th November 2012.  They were  molested and the above stated  items were stolen. Later a  phone make Nokia  NO. IMEI  NO. 359359031648550 belonging  to PW2 was  recovered  from 2nd   appellant  who led  the police to the 1st  appellant.

I have considered the grounds  of appeal and the opposition  by State  and this court being  an appellate court is obligated by law  to relook at the evidence  tendered  at the trial court afresh  and re-evaluate  the same  in order  to find if the same was  sufficient  to sustain  the conviction  or not .  I am  cognizant  that I did see the witness first hand  in order to make observations on their demeanor .

I have looked at both  sets of grounds and I  shall combine  them and synthesize the same  into two for ease of determination.

Whether  or not  the prosecution discharged   its burden of proving  their case beyond reasonable doubt.

If the case  was proved  whether  the sentence  were fair and correct in law.

Whether  he case was  proved  beyond reasonable doubt  in the subordinate court .

The appellants  have pointed out that the case against  them was not well established  and that the trial court  relied on oral evidence of  investigating officer  which evidence had been  countered  by the denials  put forward  .  According to the appellant  the issue of recent possession of the stolen items  was not well corroborated.  The 1st appellant alleges that he had no prior knowledge of the 2nd appellant  and only came to know him at the police station when  they were arrested.  The 2nd appellant stated likewise .  The 1st  appellant DENNIS KARANI NJERU  stated  in his submissions  that  he was not even found  in actual possession  of the stolen phone and that the bhang allegedly found on him was planted by the police.

The 2nd  appellant  told the same thing to the trial court  but did  not and has not given reasons  as why the police would be interested  in framing him.

Now turning to the evidence  tendered  by the prosecution at the trial court, the prosecution called a total of seven  witnesses.  It is not disputed  from the evidence  tendered that PW1  and PW2  were violently robbed  by armed  robbers on the night of 25th November,2012 and that  a number  of goods were  stolen among  them  a Nokia phone  belonging  to PW2 the complainant in count 3 in  the charge that faced the appellant  at the trial court.

I have looked at the  evidence of PW1  and PW2  and I find  the evidence consistent   with the evidence of PW3 and PW4 in so far as  the robbery  is concerned.  The phone belonging  to PW1 has never been found and the phone that  was recovered is the one that belonged  to the PW2 NOKIA 2330 IMEI NO.359359031648530.  PW5 one of the investigating  officers ,testified before the trial court  and gave a chronology of events  from the time  they received  the report  on the  said robbery  to the time they arrested the appellants  in this case  after  investigations   which he carried out  together  with PW7 one CPL Ezra Serem.  I find that the  evidence of PW and PW7 was  central  and key to the prosecution case.   PW7 told the court how he wrote to Safaricom  giving them the IMEI NOS of the phones  belonging to PW1 and PW2 and that he received a positive  response  from Safaricom  that the phone belonging to PW2 NOKIA NO. 359359031648550 was active and it was being used by several numbers among them SIM card  of mobile NO. 0729699939 which was  mobile number registered  in the name of the 1st appellant  herein DENNIS KARANI NJERU.   He was found to have used  the stolen phone  on 1st December,2012  at  19. 20 hours.  The identity  of the Safaricom  subscriber given was NO. 27800557.  At the  same time PW7  was also able to establish with the help of Safaricom   that another mobile  card NO. 0710857365 also used  in  the same stolen phone on 1st December 2012 at 21. 33 hours.  The mobile  number was registered  in the name of  2nd appellant herein  and his identity was given as NO. 24439693.  This  evidence  was well corroborated  by production of P exhibit 7, 7a and 7b.  PW 5 and PW7 armed with these crucial information told the court how they  managed to arrest  the 2nd appellant  and later the 1st  appellant .  The 2nd  appellant  was caught  when  using the stolen handset and this was the key   part  of the investigation and the subsequent  prosecution of the appellants herein. The evidence adduced  by the witnesses  were consistent  and I find no contradictions.  The appellants  at the trial court  never gave any plausible  explanation on how they came to possess  and  use the stolen phone.  The  Learned magistrate  properly directed himself in law by making a presumption he made  in his judgment  that the appellants  were either  thieves  or receivers  of stolen  phone in line with the legal authority  he quoted  in the case of ANDREA  OBONYO –VS- REPUBLIC (1962) EA 542 where  it was held that the application of doctrine (of recent possession)  normally shifts  the burden  from the prosecution to the accused once  it is established  that an accused  had in his/her possession stolen item/goods .  The court held that  accused  in such situations has to explain  to the satisfaction  of the court  how he came into possession of stolen item.  The explanation  given by the appellants  herein when they were put on their defence  do not hold any water.  The 2nd  appellant  admitted that mobile phone NO. 0710857365 was his.  The explanation given that  he had borrowed  handsets when his  was under repair  was not  convincing  particularly  when he told the court that he did not know his co-accused (1st  appellant  herein).  If they  did not know each other as they claim, how then could  they have borrowed  each other a phone?  One is unlikely  to borrow a phone  from a total stranger.  This  is  because the evidence  of PW7  shows that  the two appellants  used the stolen phone same day within an hour  apart.  The print out of the data manifest  from safaricom  showed the lines  that had been used  on the stolen phone before and after  the incident .  The same  was produced at the trial court by PW7  as P exhibit 7.  The data shows  clearly that apart  from  other mobile  lines that  were used  in the stolen phone  were that 2nd appellant(Twaha Muchiri) (0710857365) and 1st  appellant Dennis Karani Njeru-0729699939.

The evidence adduced  by PW5 and PW7 in my view  was overwhelming . The evidence of consistent  with the  evidence  of PW1, PW2 and PW3  I have found no contradictions.  I also  find that the investigation  carried out  was sufficient  and commendable.   PW7 told the trial court  that when they arrested  the 2nd appellant  they  prepared an inventory of what  was found  in his possession  which were

Identity card  bearing the name Twaha Muchiri  Ita  ID NO. 24439693.

Voters card in the name of Twaha Muchiri.

One nokia make 2330 of IMEI NO. 353559031648550.

Sim card  for mobile line NO. 0710857365.

The inventory  was produced  as P exhibit 12  signed by PW7,  two other police officers and the 2nd  appellant to confirm the contents.  The 2nd appellant  appended  his signature  and thumb printed   it as seen in the exhibit produced.    The 2nd appellant  has not contested  this.   The  same thing  was done  in respect to  the 1st appellant  where the following items were  in his possession.

Identity card NO.27800557 bearing the name Dennis Karani Njeru.

Voters card bearing  the same name.

Two stones of bhang with 56  ½  a number of rolls .

One yu sim card with serial NO.8925405001162754851.

One safaricom sim card NO. 0729-699939.

The inventory  was duly signed  by the investigating officers and the 1st  appellant who signed  and thumb printed  it.  The 1st appellant  similarly has not contested  the same.   The items  recorded  in the inventories  were all  produced  as exhibits  at the trial court .  The trial court properly directed itself  in law  in evaluating  the evidence.  The only minor issue  noted   is where the trial court  faulted the investigating officer for not producing  documents from safaricom  showing that  the 2nd  appellant  was the registered  line holder of mobile NO. 0710857365 while the 1st appellant  was the registered holder of mobile  NO. 0729699939.  In my  view  however, there was no need  for the same as the appellants  admitted that the respective  mobile lines belonged to them.  The respective sim cards  were found  with them  and  they admitted  to the police  and also  on oath  in court that the lines  were indeed  theirs.   The said mobile lines  were used on the stolen  mobile phone almost five days after the complainants were violently robbed  of their valuables including  the mobile phone recovered .  Both  the appellants did not stake any claim on the ownership  of the mobile phone.  The 2nd  appellant  in his defence at first maintained that the stolen phone was  his but midstream  in his evidence  he changed  course and said that he infact  had taken his phone  for repair and if he had used the stolen handset then he may have borrowed it  .  He however did not say the person  he had borrowed  from.   The 1st appellant could not also identify the person he had borrowed the phone from .  It is clear therefore why the trial court made the right conclusion that  the appellants  knew that the said  handset  was stolen.  I have considered  the defence  put  forward and though the appellants claims that the same was  not considered , the trial court  considered it.  I do find appellants defence  to be mere denials, diversionary and lacking  in critical parts  which was to provide  a reasonable explanation on how the stolen handset  came to their possession.   Infact I find that the appellants  were lucky that the prosecution could not  find any other link to connect  them with the robbery with violence .  In the case of SOLOMON LOKWAI LOBUIN –VS- REPUBLIC(2006) e KLR the court made the following  relevant observation;

“ …………there was no evidence to link the appellant  with the robbery with violence   which occurred  more than 4 months  prior to the arrest  of the appellants and recovery of stolen items during the robbery.  We are of the view that since  there was no evidence of identification  by the complainant  the doctrine  of recent possession cannot be applied in the  circumstances  of the present case  to connect  the appellant to the robbery…………. We are of the view that the circumstances under which the mobile  was found in the possession of the appellant suggests that he was aware that he was handling stolen property .  The explanation given  by the appellant on how he came  to be in possession of the said  mobile  was not satisfactory”.The circumstances  obtaining  in the above case  is almost similar to the present case .

The trial magistrate  acquitted  the appellants herein on the charge of robbery with violence  owing to the lack of sufficient  evidence.  There was evidence that the stolen handset  was used  a day after the robbery  by a person who is still  at large.  Perhaps  had that  person been apprehended  he could have provided  a link  which would  have assisted the court in  administering justice.   In  that regard the Learned magistrate was correct in acquitting the appellants  on the count of robbery with violence  and convicting  them on the 3rd count of handling stolen goods contrary to Section 322(1) and (2)  of the Criminal Procedure Code.  I find that the evidence  adduced against the 1st  appellant  in regard to being in possession of canabis sativa  was  sufficient  to sustain the charge.   The 1st  appellant  was  unable to demonstrate  that there  was bad blood between  him and the police officers as to make them plant bhang  on him or frame him for the charges that faced him.  I  find the said allegations  unfounded and diversionary.

In conclusion I find  that the evidence adduced  by the prosecution  at the trial court was sufficient  to sustain the conviction  that the trial court found  against the appellants.  On the issue of sentence  I find that the sentence  prescribed  under Section 322(2)  of the Penal Code  is imprisonment  with hard labour  for a term not exceeding 14 years.  The provisions  of  ( Section 354(3) Criminal Procedure Code  allows this court  to either increase  or reduce  the sentence  on appeal  depending on the circumstances .  In the case of  FRANCIS ODINGI –VS- REPUBLIC (2011)  e KLR  the court of appeal held as follows:

“ the charge facing the appellant  was tried by the Senior Resident Magistrate.  The sentence  provided  for the offence  is 14 years  but the Learned magistrate sentenced  the appellant to  6 years  imprisonment.  He was aware and recorded that the appellant  was a first offender and other mitigating circumstances  and this is why  he handed down   6 years  imprisonment .  This was a discretionary  function  and it is our view that since the Attorney General  had not  applied for  enhancement  of the sentence, there was no compelling  reasons for the  Learned Judge to enhance  it as he did”.

The 4th count facing the 1st appellant carries  a sentence  of 10 years .  He was sentenced  to 1  ½ years  by the trial court.

The state through Mr Omayo  did  contend that the sentence was very lenient  but did not ask  me to  enhance it which I could have considered .  However  having failed to  ask for enhancement  I do not find the sentence  to be manifestly  inadequate  to attract  my intervention. I find that the trial magistrate  must  have considered  mitigating circumstances  contrary to what the appellants contend.

From  the foregoing I find  the appeal before me to be devoid  of merit .  It  is dismissed.  The conviction  and the sentence  is upheld  for the reasons  advanced.

R.K. LIMO

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 11TH DAY OF DECEMBER 2014 in the presence of

The 1st appellant

The 2nd appellant

Mr Sitati  for state

Mbogo Court Clerk