Jack Mwangi Warui & Moses Muthie Gichangi v Republic [2013] KEHC 365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 160 OF 2012 CONSOLIDATED WITH CRIMINAL APPEAL NO. 159 OF 2012

JACK MWANGI WARUI ……………………….1ST APPELLANT

MOSES MUTHIE GICHANGI ……………….2ND APPELLANT

-VRS-

REPUBLIC…………………..…………………..RESPONDENT

(FROM THE ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NUMBER 1028 OF 2010 IN THE  SENIOR RESIDENT MAGISTRATE’S COURT AT BARICHO - MR J.N. MWANIKI –(SRM)

JUDGMENT

The two appellants JACK MWANGI WARUI  and MOSES MUTHEE GICHANGI were  charged  separately  and also jointly  with two others namely MARY WANGUI MUGO and NICHOLAS NJOMO  NJURAI in three counts with the offence of breaking into a building and committing a felony contrary to section 306(a)  of the penal code.

The particulars supporting  the charge in each count were stated  in the charge sheet but just to outline  them in summary, it was alleged that on the night of 27th day of November  2010 at Kagio Trading Centre in  Kirinyaga  West  District within Central province, the appellants and their co-accused  broke into three shops belonging to FELISTUS WANGARI, JERUSHA WAKIAGA MUTHONJA  and TABITHA WANJIRA and stole  from therein sewing machines , assorted pieces of clothing  material ,school uniform and dresses among other  items all valued at different  amounts of money as specified  in the charge sheet.

In the alternative, the appellants were also charged with the offence of handling stolen goods  contrary to section 322 (2) of the penal code   in that on the 15th day of December 2010 at Kagio village  otherwise  than in the course of  stealing, they dishonestly  retained four pieces of clothes  valued at  kshs 3,000 and one incomplete  dress valued at kshs 600  the property of FELISTUS WANGARI, JERUSHA WAKIAGA and TABITHA WANJIRA  respectively knowing that they  were stolen goods .

In count 4, the appellants faced another charge  in which they were charged with the offence of stock theft  contrary to section 278 of the  penal code  in that on the 11th day of December 2010 at Kagio village, they jointly stole four goats valued at kshs 20,000 the property of AMOS MUTUGI .

The appellants also faced  the offence of handling stolen goods contrary to section 322 of the penal code as an alternative  charge to count 4 in which it was alleged that on  the 15th December 2010 at Kagio village otherwise than in the course of stealing, they dishonestly retained four (4) kilogram’s   of meat  valued at kshs 800 the property of AMOS MUTUGI knowing that they were stolen goods.

After full trial, the appellants  were  acquitted of the charges  in count 2  and count 4 but were convicted  together  with their  co-accused  MARY WANGUI  MUGO (3rd accused )  in count 1 and  count three subsequent to which  they were  sentenced to serve  7 years imprisonment in each  count.  The sentences  were ordered to run concurrently .

Being aggrieved by the conviction and sentence , the two appellants filed their appeals  separately which were  consolidated  when they came up  for hearing.

In their  respective appeals, the appellants  raised similar grounds  in which they mainly complained  that they were convicted  on the basis of contradictory and insufficient  evidence.  They also complained that  the learned trial magistrate erred in not considering  their defence  and mitigation.

Briefly, the case for the prosecution in count 1  and count 3  was that on the night of 27th and 28th day of November 2010 , shops  belonging to FELITUS WANGARI and JERUSHA  WAKIAGA were broken into  and several items  stolen.

According  to FELISTUS WANGARI (1st complainant) she had  securely locked her shop  on 27th November 2010 at about 7 p.m. and  went home.  On 28th November 2010 in the morning , she received a call from a neighbour  informing her that  her shop  had been broken into.  She proceeded  to the shop and confirmed the information .  She noted that the shops door  was open and two sewing machines, customer’s clothes  and some cloth materials  had been stolen.  She reported the matter  to the police  at the Kagio police post .

It is important  to note at this juncture that from the court  record, this witness appears to have  given evidence twice  when she testified  as PW1 on 24th March 2011 and as PW3 on 10th May 2011.

In both instances, she gave a similar account  regarding  how her shop was broken into and  what had  been stolen but contradicted  herself  regarding how four pieces of  cloth materials  which formed part  of what had been stolen  from her shop  had been  recovered.  She was however  consistent  in her claim that she saw  the materials when they  were allegedly recovered from the appellants and she  was able to identify them in court  as part of her stolen items.

PW5 JOSEPH NDII the area elder and PW7 CPL PATRICK ITHIRI testified on how  the four pieces of cloth materials  stolen from PW1’s shop were recovered  and how the appellants were arrested.

In their defence, the appellants elected to give  unsworn  statement and  did not  call witnesses .

In their defences, the appellants   denied having committed  the offences  charged and denied any knowledge  of the four  pieces of cloth  materials  produced  as exhibit  in support of the prosecution case which  were allegedly recovered from them.

This being a first appeal, this court has a duty to re-evaluate  and consider  a fresh all the  evidence adduced  in the lower court to arrive at its own  conclusions   of course bearing in mind that it did not see or hear  the witnesses.

Having re-examined  the evidence on record , I wish to state from the outset that  though the appellants  were convicted and sentenced  in count 1 and count 3, no evidence  was adduced  by the prosecution  in support of the charges  in count 3.   The prosecution  for undisclosed reasons  did not call any witness including the complainant Tabitha Wanjira to confirm or deny that her shop  had been broken into as alleged and that the items stated  in the charge sheet  had been  actually stolen  from therein.  There was  therefore no evidence to prove that the offence had  been committed  in the  first place and  the learned trial magistrate  consequently misdirected  himself  when he held that  there was evidence  to prove that the appellants  had committed  the offence.  There  was absolutely  no evidence  to support such a finding .  I am therefore  satisfied  that the appellants  were wrongly  convicted  in count 3.

As regards count 1, my analysis of the evidence adduced in support thereof  reveals that the evidence  was contradictory  in material particulars  especially  the evidence regarding recovery of the materials  allegedly  stolen from the 1st complainants  shop.(Felistus Wangari )

As noted earlier, for reasons which are not stated in the court record, this witness  testified twice  as PW1 and PW3 and contradicted  herself  on the issue  of recovery of the said cloth materials.  As PW, she claimed that the materials  were recovered from the appellants  house in her presence and that both appellants had been found asleep in the house when the recovery  was made.

When she later testified  as PW3, she claimed  that she went to Kagio  police post  on hearing that some stolen items had been recovered and arrival, she was shown   pieces of cloth material which she identified as some of the property stolen from her shop contradicting  her earlier evidence  that she saw the cloth material  when it was recovered  in the   appellant’s house.

These two versions  of the witnesses testimony are impossible to reconcile considering  that they were given by the same  witness in relation to the recovery of the same exhibits  which  she identified  in court. The contradiction regarding the recovery  of the exhibits  was further compounded  by the evidence of PW7 the investigating  officer  who claimed that the exhibits  had infact  been recovered  from the house of the 3rd accused  who was acquitted  by the lower court  and not  from the house allegedly rented by the  appellants.

Another discrepancy regarding the  recovery  of the exhibits is to be found  in the evidence  of PW5 who contradicted PW1’s earlier  claim that both appellants were found  in the house  in which the exhibits  were recovered .  He maintained that he arrested the 2nd appellant   while running away from the direction of the premises  in which  he later found the  1st appellant.  He had  arrested him not because he was aware that he had  committed any offence but out of suspicion because he knew him to be a  person of questionable character.

It is clear from the  judgment of the trial court that the appellants were convicted  in count 1 on the basis  of its  finding  that the prosecution   had proved beyond doubt that they  had been found in possession of the materials  which had recently  been stolen  from the 1st complainant’s  shop bringing into operation the doctrine  of recent possession.

However, the   doctrine of  recent possession  only applies where    there is  proof beyond doubt  that there are  stolen items  which had  had been  recovered  from either the actual  or constructive  possession of an accused person not long  after their  theft.

In this case, taking into account the  contradictions  in the prosecution’s case  generally and particularly the  evidence of  PW1   and   PW7 regarding  how the exhibits  in question were recovered, it is my finding that there was a possibility that the said materials  were  recovered from the  house of   the third accused person  in the lower court   and not  from the appellant’s house  especially given  that the  two houses  were in the same compound.

As the appellants had denied  having committed the offences, it was the duty  of the  prosecution to prove  the charges against  them beyond  any reasonable doubt.  And the only way that the prosecution would have  done so would have been by proving beyond doubt that  the exhibits produced  in the course of the trial formed part of the property stolen from the complainant’s shop and that  they had actually  been  recovered in the possession of the appellants  not long after their theft.

In this case, as demonstrated earlier, a reasonable  doubt existed   whether or not  the exhibits  were recovered  in the possession of the appellants.  And because  the alleged  recovery  of the exhibits  from the possession of the appellants  was the only piece of evidence  linking the appellants  with the commission  of the offence  charged in count 1, doubts concerning  whether they  were  found in possession of those exhibits translated into doubts  whether they had committed the offence as alleged.

The learned trial magistrate ought to have given the appellants the benefit  of that doubt .

Instead  of doing so, the learned  magistrate  wrongly convicted  the appellants  on the basis  of evidence  which did not prove  their guilt  beyond  any reasonable doubt.

In view  of the foregoing, I am satisfied that the appellants  conviction in count 1 was not well founded.  It was unsafe and it cannot be allowed to stand.

In the end therefore, I find that the appeal is merited and it is hereby allowed.  The convictions of the appellants in count 1 and count 3 are hereby quashed and the sentences set aside.

Each appellant is to be set free forthwith unless otherwise lawfully held.

C.W. GITHUA

JUDGE

DATED, SIGNED AND DELIVERED at KERUGOYA THIS 10TH DECEMBER, 2013In the presence of

Both appellants

Mr Sitati for state

Kariuki Court Clerk