John Odhiambo, Sylvester Musembi Kimilu & Joel Mutune Mutuku v Republic [2017] KEHC 1574 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCRA NO. 44 OF 2017

JOHN ODHIAMBO..............................1ST APPELLANT

SYLVESTER MUSEMBI KIMILU.......2ND APPELLANT

JOEL MUTUNE MUTUKU.................3RD APPELLANT

-VERSUS-

REPUBLIC.............................................PROSECUTION

JUDGEMENT

1. The Appellants were charged with:-

a. COUNT 1: ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court while armed with dangerous weapons namely a toy pistol and knife robbed Beatrice Busiliru of 800 US Dollars, six wrist watches, four necklaces, two handbags, two suit cases, assorted shoes, smart card, 29 female bangles, two pairs of ear rings, three travelling bags, cooking fat, assorted clothing, one packet of fruity juice chewing gum and two pairs of binoculars all valued Kshs. 119,000/= and at the time of such robbery beat the said Beatrice Busiliru.

b. ALTERNATIVE COUNT IN RESPECT OF COUNT 1: HANDLING STOLEN GOODS CONTRARY TO SECTION 322(1) (2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court otherwise than in the course of stealing dishonestly received or retained 180 US Dollars, six wrist watches, four necklaces, two handbags, two suit cases, assorted shoes, smart card, 29 female bangles, two pairs of ear rings, three travelling bags, cooking fat, assorted clothing, one packet of fruity juice chewing gum and two pairs of binocularsknowing or having reason to believe them to be stolen goods.

c. COUNT 2:  ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court while armed with dangerous weapons namely a toy pistol and knife robbed Joe King Musangali his motor vehicle registration number KBG 868F Toyota Granvia, watch make Seiko 5, Nokia Phone, laptop, a pair of shoes, one wallet, KCB ATM card, Co-operative bank ATM card, Equity bank ATM card all valued Kshs. 4,586,000/= and at the time of such robbery beat the said Joe King Musangali.

d. ALTERNATIVE COUNT IN RESPECT OF COUNT 2: HANDLING STOLEN GOODS CONTRARY TO SECTION 322(1) (2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others dishonestly received or retained motor vehicle registration number KBG 868F Toyota Granvia, watch make Seiko 5, Nokia Phone, laptop, a pair of shoesknowing or having reason to believe them to be stolen goods.

e. COUNT 3:  ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court while armed with dangerous weapons namely a toy pistol and knife robbed Patience Musa her two Samsung phones, wrist watch, ten rolls of cloth material, Digital camera, one handbag, Co-operative bank ATM card, Equity bank ATM card,and KCB ATM card all valued Kshs. 97,000/= and at the time of such robbery beat the said Patience Musa.

f. ALTERNATIVE COUNT IN RESPECT OF COUNT 3: HANDLING STOLEN GOODS CONTRARY TO SECTION 322(1) (2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court otherwise than in the course of stealing dishonestly received or retained two Samsung phones, wrist watch, ten rolls of cloth material, Digital camera, one handbagknowing or having reason to believe them to be stolen goods.

g. COUNT 4:  ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court while armed with dangerous weapons namely a toy pistol and knife robbed Karen Musangali her Ztec phone, jewelries, one wrist watch Timex, Identity card no. 14676544, cash Kshs. 350/= and Equity bank ATM card all valued Kshs. 6,350/= and at the time of such robbery beat the said Karen Musangali.

h. ALTERNATIVE COUNT IN RESPECT OF COUNT 4: HANDLING STOLEN GOODS CONTRARY TO SECTION 322(1) (2) OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Kanga area, Mtito Andei Location, Kibwezi district within Eastern Province, jointly with others not before court otherwise than in the course of stealing dishonestly received or retained Ztec phone, jewelries, one wrist watch Timex, Identity card no. 14676544, cash Kshs. 350/= and Equity bank ATM cardknowing or having reason to believe them to be stolen goods.

i. COUNT 5:  CONVEYING SUSPECTED STOLEN PROPERTY CONTRARY TO SECTION 323 OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Voi Township in Taita Taveta District within Coast Province, jointly with others not before court having been detained by Ag. IP Safari Katana and Sgt Bernard Katana as result of the exercise of powers conferred to them by Section 26 of the Criminal Procedure Code had in their possession two reflective jackets, two rain coats and one VHF Air band transceiver pocket phone make Icom S/No. 0207409 reasonably suspected to have been stolen or unlawfully obtained.

j. COUNT 6:  POSSESSION OF PUBLIC STORES CONTRARY TO SECTION 324 (2) AS READ WITH SECTION 36 OF THE PENAL CODE.

Particulars are that on the 15thday of July 2012 at Voi Township in Taita Taveta District within Coast Province, jointly with others not before court had in their possession one police cap and two head badges such property being reasonably suspected to have been stolen or unlawfully obtained.

2. The Appellants pleaded not guilty and the matter went into full hearing.  The Appellants were convicted and sentenced to suffer death in respect to counts 1, 2, 3 and 4.

3. In Count 5, the Appellants were sentenced to serve 2 years imprisonment and in Count 6, the Appellants were sentenced 3 years.  All were to run consecutively but with a rider that if death sentences were executed, the other sentences were to be in “opaque”.

4. Being aggrieved by the above decision, the Appellants lodged Machakos HCRC No. 81/2015, 82/2015 and 83/2015.  Sylvester Musembi Kimilu, John Odhiambo and Joel Mutune Mutuku respectively.

5. The same appeals were heard together under Makueni HCRA 44/2017.  Each filed separate grounds of appeal which they amended during the hearing vide their various amended supplementary grounds of appeal.  The common grounds they raised in appeals were:-

The circumstances for identification were not conducive.

There was no identification parade conducted to identify the attackers.

The recovered items never linked them to the offences charged.

The telephone which received call that led to the arrest of them was never produced as an exhibit.

The investigation was very shoddy thus it could not be relied on.

The case was not proved beyond reasonable doubt.

The defence tendered were not considered.

6. The Appellants and the respondent agreed to canvass appeal via written submissions.  The Appellants filed and served but the respondent responded orally.

7. This being the first Appellate  court, it is enjoined to look at the evidence before the trial court afresh, re-evaluate and examine the same and reach its own conclusion whether or not to uphold the conviction of the Appellant.

8. In reaching its decision, this court has to bear in mind the fact that it did not have an opportunity of seeing the witnesses as they testified and therefore is not expected to make any findings as to the demeanor of the said witnesses.

9. Finally, this court is expected and mandated to consider the grounds of appeal put forward by the Appellant in reaching its judgment. SeeKINYANJUI –VS- R (2004) 2KLR P.364. See alsoOKENO –VS- REPUBLIC.

10. The prosecution evidence is summarized as follows:-

11. PW1 was Beatrice Busiliru. She testified that on 15/07/2012, they were car-jacked by people who were masquerading as police officers about four kilometers from Mtito Andei town at midnight.

12. She said that the thugs took over the control of their car and drove them to the bush where they robbed them of money, suitcases, clothes, bangles, watches and several other items. She reported the matter to the police after her children untied themselves and also untied PW1 Joel King and Patience Musa.

13. She said that the robbers had stuffed clothes in their mouths to prevent them from screaming. She said the police recovered her black suitcase, sisal ropes, four bangles, her earrings, necklaces and the motor vehicle all of which she identified this court.

14. She said that the four accused were arrested in relation to the matter and taken to Mtito Andei Police station.  On cross examination by the first accused, she said she identified him and the other accused at the point of the carjacking with the help of the car’s headlights before the four accused carjacked them.

15. On cross examination by the second accused, she said that all the four accused were dressed in police uniform when they robbed them.

16. Under cross examination by the third accused, she said she identified him at Mtito Andei police station. She emphasized that the vehicles headlights helped her identify the accused while under cross examination by the forth accused.

17. PW2 was Joe King Musangali. He testified that on 15/07/2012 at 12. 10 a.m. they were stopped by people who were dressed like police men as they were travelling from Mtito Andei towards Voi. He said that he was travelling with PW1 Patience Musa, Kere Musangali and his five year old daughter namely Princess Musangali.

18. He said the people who stopped them turned out to be robbers. One of the robbers pointed a gun at him and ordered him to jump to the back seat after hitting him with his elbow. PW2 obliged. He said the robbers drove the vehicle into Tsavo National Park where the robbers assaulted them and robbed them of money, suitcases, the car, watches and other personal belongings.

19. He said that his Seiko 5 watch, his laptop, his KCB, Equity and co-operative bank ATM cards were stolen. He said that the robbers forced them to lie face down on the ground and tied them with ropes before stuffing clothes into their mouth to prevent them from screaming.

20. He said that the robbers went away after untying their daughter who in turn untied them and they eventually reported the matter to the police. He said that the police in Mtito Andei were called and informed that his vehicle had been recovered at Voi town. He said that he identified the four robbers using the headlights of the vehicle and the cabin lights.

21. PW3 was Kere Musangali Bisheshe. She testified that on 15/07/2012 at 12. 00 a.m. midnight she was travelling with PW1, PW2, Patience, Princess and Sallu to Mombasa in a Toyota car, when they were stopped by people who were dressed like police officers a few kilometers from Mtito Andei town.

22. The people who stopped them turned out to be robbers and they took control of the motor vehicle at gun point and drove it into Tsavo National Park. She said that one of the robbers ordered her to give him her earnings, necklaces, watch and camera. She said that while in the bush the robbers assaulted PW1, PW2 and also stole all their belongings.

23. She said that the robbers took their ATM cards and also demanded to know their PIN numbers together with the M-pesa pin numbers too. PW3 said that they gave the numbers and their details.

24. She further said that some of the robbers touched her private parts. The robbers thereafter told them to lie prostrate on the ground and tied them with ropes.  She said that one of the robbers placed a knife on her neck. Thereafter the robbers stuffed clothes into their mouths to prevent them from screaming.

25. The robbers then threatened to run over them with the motor vehicle but they did not carry out the threat. After the robbers drove away in their cars they managed to untie themselves and eventually reported the matter to the police. She said that she later recovered her wrist watch and mobile phone. She said that she identified the robbers using lights from the vehicle. She said that the accused are the ones who robbed them.

26. PW4 was patience Ikonyi Musa. She testified that on 15/07/2012 at 12:10 a.m., she was travelling aboard motor vehicle registration number KBG 868F with PW1, PW2, PW3 and two children. She said that they were stopped 5 Kilometers from Mtito Andei town by people dressed in police uniform who turned out to be robbers.

27. She said that the robbers took control of the vehicle at gunpoint and drove it into Tsavo National Park where they robbed them of money, watches, phones ATM cards bangles, 3 chains clothes and suitcases. She said that the accused assaulted them during the robbery.

28. She said that the accused robbed her of several rolls of clothes material. She said that they were untied by children after the robbers drove off. They eventually reported the matter to the police. She said that her clothing materials, ATM cards, the motor vehicle, PW1’s travelling bags and her mobile phone were recovered. On cross examination she said that she identified the four accused using light from the vehicle.

29. PW5 was a police man No. 56524 A.g. Inspector Safari Katana. He testified that he is in charge of the Voi Highway Patrol Unit and on 15/07/2012, at 4:00 am he was on duty when one Faith Wambui called him and informed him of this incident. He said that she informed him that motor vehicle registration number KBG 868F had been stolen by the robbers.

30. He said that he had spotted the vehicle at Canaan where he was patrolling and they pursued it and found it parked outside co-operative bank in Voi. He ordered the occupants of the vehicle to come out but they hesitated. He shot in the air and two men came out of the vehicle.

31. Two other men came from the ATM machine and the four men ran into darkness when they were challenged by police to surrender. The men left two mobile phones behind. one of the phones rang and a police officer disguised himself as one of the robbers and received the call the caller led them to Voi bus stage but when he reached there and the robber identified him, he jumped into a car and drove off.

32. The police man noted the number of the car as it sped off. They tried to trace the signal of the robber’s phone and initially it was traced at Chulu and later at Mtito Andei. PW5 contacted police at Mtitu Andei who intercepted the car that had sped away from Voi.

33. He said that they searched the vehicle that was left at Voi Co-operative bank and retrieved two reflective jackets, 2 caps – one used by the police and the other used by security guards; two black rain coats which resembles the ones used by the police, a toy pistol, a knife, a police radio, two touches and a rope.  He identified these items in court.

34. PW6 was Sergeant Bernard Kadenge Kazungu.  He testified that on 15/07/2012 he was on patrol duties between Ndi and Canaan near Voi.  He was with PW5 and other police officers.  PW5 received a call to the effect that a certain vehicle had been stolen.

35. He said that PW5 said that he had spotted the vehicle at Canaan and ordered them to help him pursue it.  PW6 was the driver of the police vehicle.  They went to Co-operative bank in Voi and found the vehicle parked there.

36. Police challenged the occupiers of the vehicle to alight and two men came off the vehicle while running and he (PW6) picked it.  When it rang, he answered it and the caller led him to the Voi bus park where he went on foot, pretending to be one of the robbers.

37. On reaching there, PW6 saw a certain slim man who got into a white car before PW1 could reach him.  He said that the registration number of the white car was KAJ 165 but he could not remember it very well.  He said he went back and briefed PW5 on what had happened.

38. He said that the motor vehicle that was left at the bank was searched in his presence and reflective jackets, a toy pistol, a police radio phone, a knife, sisal rope, a police cap, a travelling bag and touches recovered.  He identified them in court. He said that the white vehicle was actually registration number KBJ 135A.  He said he never identified any of the accused persons.

39. PW7 was corporal Stanley Sahsaki from Mtito Andei police station.  He testified that on 15/07/2012 at midnight he was on patrol duties along Mombasa road.  He was informed by a truck driver that some people wearing police uniform were stopping motorists near Mtito Andei.

40. He went to check but he never found anyone there.  He went back to Tsavo River.  At around 3. 30 a.m., a bus christened Mombasa Raha stopped at the road block and out came six people who reported that they had been robbed of their vehicle and other property.

41. He circulated the registration number of the stolen vehicle to other police stations.  He was later informed by Voi highway patrol officers that the vehicle had been recovered.

42. He said that Voi Highway patrol officers later called him and informed him that the thieves had boarded motor vehicle Reg. KBJ 135A Toyota NZE enroute to Nairobi.

43. He said that they mounted a road block and stopped the vehicle which had five occupants.  One of the occupants escaped while the other four were arrested.  He said they searched the four suspects and recovered jewelry, wrist watches, US dollars, and a Samsung mobile phone from them.

44. PW8 was Bartholomew Nzilu Mutuku.  He testified that on 13/07/2012 a person asked him to look for a vehicle for hire.  He contacted his friend who supplied motor vehicle registration KBJ 135A to the person for hire for two days from 13/07/2012 – 15/07/2012.

45. On 15/07/2012 he went to the house of the person who had hired the vehicle but was informed that the vehicle had been detained at Mtito Andei police station.  He asked the man who had hired the vehicle from him to accompany him to Mtito Andei police station but he declined.

46. PW8 went alone to Mtito Andei police station where he was informed that the vehicle had been used to commit robbery.  After PW8 testified the fourth accused was released on bond but absconded so the case proceeded against eh remaining three accused persons.

47. PW9 was chief inspector Calistus Mauko.  He testified that on 15/07/2012 this matter was reported to him at Mtito Andei police station.  He conducted investigations.  He said that he was informed by PW5 that motor vehicle registration No. KBG 868F had been recovered at Voi while the robbers were trying to withdraw money from an ATM.  He said that he discovered that the phone dropped by one of the robbers at Voi belonged to Odhiambo, the first accused.

48. He said that the robbers escaped from Voi using motor vehicle registration No. KBJ 135A which was later intercepted and the four suspects were arrested by the police.  He said that PW1, PW2, PW3 and PW4 identified the suspects as their assailants when they were taken to Mtito Andei police station.

49. He said that he proceeded to Voi where vehicle registration motor no. KBG 868F has been recovered.  He said that the exhibits were photographed by scene of crime personnel.

50. He produced the black suit case, sisal rope, the bangles, earrings, necklaces, wrist watch, photographs of motor vehicle registration KBG 868F, jackets, raincoats, torches, knife, walkie talkie, toy pistol, two police caps, sisal string and photographs of motor vehicle reg. No. KBJ 135A as exhibit.

51. He also produced a bundle of images from the CCTV cameras at Equity bank Voi branch and the clothes one of the robbers was wearing while withdrawing money from the ATM as exhibits.  He said that the second accused was wearing the same clothes when he was arrested by highway patrol police officers.

52. PW9 also produced a black cap, grey jacket and green t-shirt as exhibits these are the clothes he says that the second accused was wearing when he was arrested. He said that investigations revealed that motor vehicle registration number KBJ 135A had been hired by one William Mwayarigi Mutisya from PW8.

53. He produced the car hire agreement in court as an exhibit. He said that the accused were found with some dollars which he photographed and released to the complainants. He said that the first accused’s phone is still with police at CID headquarters. He said that the man who was wearing the maroon and grey clothes had escaped.

54. In their defence, the accused opted to make unworn statements. The first accused, in his unsworn statement, said that he was not involved in the robbery and that he had gone to Manyani KWS training college for the graduation of his cousin and that on 16/07/2012, he was given a lift by a personal car. He said that they were stopped by police and arrested before they reached Mtito Andei town. He said that the witnesses who testified are unknown to him.

55. The second accused in his unsworn statement said that on 09/07/2012 he went to sell his chicken to Mombasa from Ruai in Nairobi. He said on 16/07/2012, he was travelling in a personal car back to Nairobi when police stopped and arrested them near Mtito Andei.

56. The third accused in his unsworn statement said that on 15/07/2015 he left Mombasa travelling to Sultan Hamud in a personal car. He said they picked another passenger at Mariakani and a third one at Voi. He said at Manyani they took another passenger.

57. He said that before they reached Mtito Andei, the police stopped them and accused them of over speeding. He said that they were taken to Mtito Andei police station where they were photographed and later charged. He said that no identification parade was conducted for him and that he saw the witnesses for the first time in court.

58. The APPELLANTS SUBMISSION in brief was to the effect that:-

59. - (PW’S 1, 2, 3 & 4) attested to have identified their attackers by means of their motor vehicle headlights without elaborating further the sort and the size of the same while it is a general knowledge that the motor vehicles headlights are normally projectional and therefore the amount of light emanating from the alleged headlights was not established.

60. -In their initial report, they only stated on how they were attacked and robbed off their motor vehicle and valuable but did not give attackers descriptions neither did they tell the police that if they could see their attackers again, they could identify them.  This is submitted, was a clear indication that they were not able to identify any of the attackers except that their attackers were dressed in police uniform.  In their testimonies during cross-examination, they admitted that they did not give any description of their attackers. See also the initial report that was made in the Occurrence Book. No 4/15/07/2012 of Mtito Andei police station.

61. They cite the case of JUMA NGODIA –VS- REPUBLIC CR. APPEAL NO. 118 OF 1983 C.A. AT NAIROBI, where it was held that: “The identification was unsatisfactory because the witnesses were not asked to describe the assailants feature or clothing or anything else that could enable them to recognize the assailants later on.”

62. Guided by the above decision of the superior court, it is submitted that the evidence of identification by PW’S 1, 2, 3 & 4 was unreliable since there was no descriptions of the assailants that was given to the police.

Further in the case ofDAVID GITUKUI CHEGE & 3 OTHERS –VS- REPUBLIC [2006] EKLRthe court held that: “……….unfortunately, there was no descriptive evidence given in the first report to the police…….”  It would have been important to give the descriptions of the assailants to the police if they were really identified at the scene of crime As was held in the case of ABANGA ALIAS ONYANGO –VS- REPUBLIC CR. APPEAL NO. 32 OF 1990 [CUR] at page 5, the court of appeal held that; “………it settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three test .The circumstances of guilt is sought to be drown must be cogently and firmly established, those circumstances should be of definite tendency un-erringly pointing towards guilt of the accused, and that, the circumstance taken cumulatively should form a chain of complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

63. It is submitted further that, it is from the evidence of PW9 that there was a mobile phone that was recovered by the officers at Voi after being dropped by the fleeing suspects.  That the alleged mobile phone was dropped at the Voi co-operative bank and was recovered by highway patrol police officers i.e. PW’S 5 & 6.

64. And that the said mobile phone was handed to investigating officer in this matter a Mr. Calistus Mauko (PW9).  Having that in mind, this was the circumstantial evidence that the prosecution side intended to use as pillar to fix the appellants that the same had belonged to one of them.

65. Failure to produce this mobile phone lessens the probative value of the prosecution case.  The narrative by PW9 that the purported mobile phone was at the C.I.D headquarter was not justified.

66. The Court should also be informed why the mobile phone that was being talked about by PW9 was not produced in court. (PW9) misdirected the court that the mobile phone that he was handed by the officers after having been collected from the scene of recovery was NOKIA C3 while the mobile phone that was collected at the scene of recovery and entered in Occurrence Book No. 19/15/7/2012 was Nokia RM 614. Thus recovered phone was not brought due to contradictions.

67. It is submitted that, when PW9 came to adduce his evidence after 2½ years, it was untenable that the said phone was still at CID headquarters.

68. The prosecution case was riddled with many contradictions, malice and inconsistencies. It is from the evidence of PW6 that the saloon car that he saw the suspects escaping with was KAJ 165, in his evidence in chief, and when he was shown the photographs of the car, he changed his statement and said that it was KBJ 135 A.

69. During re-examination by the court prosecutor, he once again confirmed to the Hon. Court that it was KAJ 135A, Toyota saloon car white in colour.

70. If this evidence is anything to go by, it is submitted that this witness was not a straight forward witness thus his evidence should not be relied upon to base the conviction just as was held in the case of NDUNG’U KIMANI –VS- REPUBLIC [1979] KLR 283, MADAN MILLER AND PORTER[J.J.A] where the court held that:-

i. “……..the witness in a criminal case upon whose evidence is proposed to be relied upon should not create an impression in the mind of the court that he is not a straight forward person or raise a suspicion about his trustworthiness, or doubtful integrity and therefore an reliable witness which makes it unsafe to accept his or her evidence.”

71. Further it was alleged by PW3 that she had identified Appellant No. 1 in an identification parade which had only 4 members but when PW9 was put into questioning about the integrity of ID parade, he PW9 vehemently denied by saying that there was no need of ID parade which is a conclusion that there was no ID parade conducted as was alleged by PW3.

72. PW6 told the court that the motor vehicle that he took its registration number was a saloon car KAJ 135A white in colour while PW7 on his part informed the court that they laid an ambush and mounted a roadblock and intercepted a saloon car registration number KBJ 135A silver in colour which statement clearly negates that of PW6.

73. PW9 further lied before the court by saying that the mobile phones that was collected at the scene of recovery was NOKIA C3 while the mobile phone that was collected by the police officers at Voi and entered in the Occurrence Book No. 19/15/7/2012 was NOKIA RM 614 and which was not even produced before the Hon. Court as exhibit.

74. It is from the evidence of PW9 that, after being handed over the entire case to investigate, he requested the scenes of crime personnel to take the photographs of the recovered items and then later on returned them to the purported owners.

75. He (PW9) did not bother to inquire or rather take orders from the Hon. Court for the same to be returned to the owners, neither did he wanted the Hon. Court to observe these items before returning them to their owners but only opted to bring their photographs as evidence.

76. Why was he in that hurry to return these recovered items, if the case was to take over 2 years before its conclusion?  In section 121(1)(3) of the CPC, the provision of the law is as follows;

-“When anything is so seized and brought before the court, it may be detained until the conclusion of the case or investigation, reasonable care being taken for its preservation.

-If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.

-If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from which it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise.”

77. The above quoted provision of the law was deliberately contravened by the prosecution size.  PW9 further produced the photographs of the recovered items which the trial court took as exhibits and marked them for identification while ignoring the rule of law under section78(1)(2)(3) of the evidence Act which also provides that and I quote;

i. SECTION 78(1) (2) (3) OF THE EVIDENCE ACT;

ii. PHOTOGRAPHIC EVIDENCE (Admissibility of certificates).

78. In the criminal proceeding a certificate in the form in schedule to this Act, given under the hand of an officer appointed by order of the Attorney General for the purpose, who shall have prepared a photographic print or photographic enlargement from exposed film submitted to him, shall be admissible together with any photographic prints, photographic enlargement and any other annex referred to there in and shall be evidence of all facts stated there in.

79. The court may pressure that the signature to any such certificate is genuine.

80. When a certificate is received in evidence under this section the court may, if it thinks fit summon and examine the person who gave it.

81. It therefore submitted that, both the prosecution and the trial court deliberately ignored the rule of law when admitting those documentary evidence as part of evidence thus miscarriage of justice.

82. Moreover the prosecution did not avail the scene of crime personnel who took the photographs and also whoever did the photographic enlargement.

83. These two witnesses were of great importance in this case and failure to call them as witnesses has dented the prosecution case.  There was no certificate produced in court to confirm the authenticity of the purported photographs which was a breach of the law under section 78(1) (2) (3) of the evidence act.

84. Appellants were charged with alternatively handling stolen goods, and in counts 5&6, they were charged with conveying stolen properties and being in possession of public stores respectively. in the case of ERICK OTIENO ARUN –VS- REPUBLIC [2006] eKLR CR. APP No. 85 OF 2005 [KSM] where it was held that;

i. “before the court can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved, that there must be a positive proof; first the property was found with the suspect, secondly that the property was positively identified as the property of the complainant, thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant.”

85. The evidence of PW7, he told the court that upon appellant 1 arrest, he recovered a mobile phone [Sumsang] and wrist watch [RADO] from him.  The said items were never brought to court because these were appellant 1 properties that are still being held by the prosecution together with his clothes, shoes and cash.

86. PW7  gave account on how and where he arrested appellant 1 and told the court exactly on what items he had recovered from him whereby one of the said items were exhibits in this case, then how did he handle these items that he was charged with?

87. Appellants were arrested on their way to Nairobi at Mtito Andei while the items (exhibits) were recovered at Voi, how did they get connected to these items?

88. In count 5, appellants were charged with conveying suspected stolen property, while the evidence of PW7 was very clear that he arrested them at Mtito Andei and nothing stolen was recovered from them, how then were they conveying suspected stolen property that were never recovered in their possession?

89. In count 6, they were charged with being in possession of public store, while the same were recovered at Voi Township and my arrest was affected at Mtito Andei, how were they  possessing public store that were never recovered from them?

90. Even if it was to be believed that the alleged mobile phone that was recovered at the scene of recovery had belonged to appellant 1 and maybe this would have connected him with the handling of the said items, then where is this mobile phone?  And why was it not brought before the court if it really existed?  Thus It is submitted that that this was a purely fabricated.

91. Thus the prosecution did not prove its case as required by the law.

92. The respondent via Kihara state counsel submitted in opposing the appeal that Appellant 1 in defence narrates how he was arrested while coming from his cousin yet he never called same cousin to corroborate his evidence.  He did not prove that he had gone to attend his cousin graduation at KWS.

93. Further when suspect flagged the motor vehicle in which victims were, with aid of motor vehicles light, the victims saw the suspects thus able to identify them.  The attackers were also having torches in their possession.  The light in the motor vehicle witnesses were travelling also aided them to see the suspects who had not covered their faces.

94. The victims’ motor vehicle was recovered in Voi where the attackers ran away on foot upon being challenged by police.  The suspects dropped phone which aided in arrest of the suspects.

95. The following day the witnesses were able to identify the attackers.  The items in the charge sheet were recovered in the recovered motor vehicle in which the witnesses were travelling.  The clothing recovered from suspects were taken for analysis but they were never produced as exhibits.

96. The prosecution case was convincing save for minor and non-prejudicial variations.  The four suspects were identified.  One was still at large.  The incident took 3 hours and witnesses had opportunity to see attackers thus trial court was justified in convicting the Appellants.

97. ISSUES

-After going through the proceedings and the submissions tendered, I find issues arising as follows;

-Whether the evidence on identification met legal threshold to warrant Appellants conviction?

-Whether the prosecution case was proved beyond reasonable doubt?

-Was the Appellants defence considered?

98. On the first issue on identification, there are aplethora of authorities setting parameters to apply in reliance with evidence on identification.

In PAUL ETOLE & ANOTHER –VS- REPUBLIC CR A NO. 24/2000the court held that;

“….the strange fact is that many witnesses do not properly identify another person even in daylight.  ……it is at least essential to ascertain the nature of light available, what sort of light, its size, and position relative to the suspect, all important matters helping to test the evidence with great care…………”

99. In DAVID GITUKUI CHEGE & OTHERS –VS- REPUBLIC (2006) eKLRthe court held that;

“………unfortunately, there was no discipline evidence given in the first report to the police………… it would have been important to give the descriptions of assailants to the police if they were really identified at the scene of crime!!”

100. In GABRIEL KAMAU NJOROGE –VS- REPUBLIC C. A held that;

“It is trite law that dock identification is generally worthless and court of law should not place much reliance on it unless it has been preceded by a properly conducted identification parade.”

101. In REPUBLIC –VS- TURNBULL the court held that:

“….. in order to ensure that courts do properly test the evidence of visual identification, this court has made it clear that courts should not rely on dock identification as evidence upon which conviction should proceed……..”.

102. In WALTER AMOLO –VS- REPUBLIC (1991) 2KAR 254the court of appeal held:

“……………..visual identification must be treated with the greatest care and ordinary dock identification alone should not be accepted unless the witnesses have in advance given description of the assailants and identified the suspects on a properly conducted parade…………..”

103. The witness PW1 - PW4 say that their car was flagged down by people in police uniform and with the aid of the motor vehicle had light they identified the attackers.  They also stated that the cabin light in their car also aided in seeing the attackers.

104. They did not state at what time they saw these people dressed in police uniforms which included head caps.  The intensity of their cars headlight was not stated and so is the position of the attackers whether they were on road or roadside.  Were they together or apart?

105. They never stated the intensity of light in the cabin and position visaVisthe attackers.  At what time was it switched on and for how long? What was the distance it was from the attackers?  The car had 3 rows of seats; it was now accommodating 6 passengers plus 4 attackers total 10.  It was a small car.

106. At the scene where the witnesses were offloaded from the car, there is no evidence there was any source of the light.  It was late at night and in the bush.

107. When witnesses went to the police station, they never gave any descriptions of the attackers.  Thus they admit and the Occurrence Book No. 1/15/017/012 confirms that they never stated that they would identify the attackers.

108. When the suspects were brought to the police next day the witness were shown to them and allegedly identified them.  No identification parade was conducted and PW9 (Investigating officer) says it was not necessary to conduct the same.

109. Going by the eight stated guidelines set by a galaxy of authorities, the evidence on identification did not meet the legal threshold.

110. It was dock identification.  The court therefore holds that the same piece of evidence was unsafe.

111. The other issue is whether the prosecution proved its case beyond reasonable doubt.  The court has already dismissed the evidence on identification.

112. The other piece of evidence which prosecution relied on is the piece of evidence on the arrest of the suspect which would be in nature of circumstantial evidence.

113. In ABANGA ALIAS ONYANGO –VS- REPUBLIC CR APPEAL NO. 320/1990 PGE 5 the court of appeal held:

“…………...it is settled law that when a case rest entirely on circumstantial evidence, since evidence must satisfy 3 tests:-The circumstances of guilt sought to be drawn must be cogently and firmly established. Those circumstances should be of a definite tendency un-erring by pointing towards guilt of the accused, and that .The circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else……………..”

114. , There was a piece of evidence that when the suspects were fleeing from the stolen car at Voi, they dropped a mobile telephone.  The police received the same and it was taken to the CID headquarters for data analysis.

115. The same was not produced and no justifiable explanation was given.  Its ownership, data on communication was not availed in court.

116. It is alleged the same was used to track down the suspects.  It led the officers to the place a suspect who was communicating with officer via the same gadget entered a car in which the Appellant were arrested on transit.  PW9 said the phone was Nokia C3 but the Occurrence Book No. 19/15/7/012 stated that it was Nokia RM 614.

117. PW6 testified that the car which the suspect who was communicating with officer entered was KAJ 165.  After being shown photographs, he changed and said it was KBJ 135A.

118. Finally in re-examination he said it was KAJ 135A Toyota Saloon white in colour.  PW7 said that the car that they had laid on an ambush and intercepted was KBJ 135A silver in colour.

119. The question is which car was noted to have been entered by the suspect by PW6 and which one was intercepted?  Were they the same car?  Could PW6 have sported a different car from the one which was intercepted?  He said he was not sure of the number plate.

120. In the case of NDUNGU KIMANI –VS- REPUBLIC  Supra the court held that:

i. “………..the witnesses in a criminal case whose evidence is proposed to be relied upon should not create an impression in mind of the court that he is not a straight forward person or raise suspicion about his trust worthiness, or doubtful integrity and therefore a reliable witness which makes it unsafe to accept his or her evidence.”

121. The issue of the car seen by PW6 taking the suspect and one intercepted carrying Appellants vide PW7 evidence create doubt as to the trustworthiness of that piece of evidence.  Thus the same does not meet the legal threshold of circumstantial evidence to warrant court to accept same evidence as safe.

122. The court notes that the investigation of the instant case left a lot to be desired.  PW9 the (investigating officer) said that when he took over the case he asked scenes of crime personnel to take photographs of items recovered and later returned them to the owners.

123. He never sought court orders to release same items to the purported owners.  In court only photographs were produced in lieu of recovered items.  This was in violation of Section 121(1) 3 CPC.

124. The photographs taken including the ones of the CCTV camera at Co-operative Bank Voi where suspects were suspected to have used ATM services were produced by the investigating officer, PW9. No certificate of authenticity was produced nor did the one who took and processed them testify.  This was in violation of section 78 (1) (2) and (3) of Evidence Act.

125. The alternative counts on handling stolen goods in counts 1-4 and count 5 and 6 were charges of conveying stolen properties and possession of public items respectively.

126. In the case of ARUM –VS- REPUBLIC (2006) e KLR on doctrine of recent possession the court held that the elements to be established are namely that:-

-   Property must be found with the suspect.

-   It must be complainant property.

-   Must have been stolen from the complainant.

-   The stealing must have been recent.

127. The recovered items were not produced as exhibits.  The items in the charge sheet were recovered from the recovered motor vehicle KBG 868F.

128. No evidence has put the Appellants in the position of possession of the said motor vehicle and the items recovered thereof.  This is because of rejection of identification evidence and the arrest evidence.

129. The onus of proof lies on the prosecution to prove its case beyond reasonable doubt.  It is not the duty of the accused person to prove his innocence.

130. In the instant case, the prosecution failed to prove case as required by law thus the legal threshold of prove was not established. The court thus allows the appeal and makes the following orders:-

1. The conviction is quashed.

2. The sentence is set aside.

3. The Appellants set at free unless otherwise legally held.

SIGNED, DATED AND DELIVERED THIS 2ND DAY OF OCTOBER, 2017.

C. KARIUKI

JUDGE

………………………………