Joseph Abuga Okebilo v Republic [2015] KEHC 3154 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL APPEAL CASE NO. 103 OF 2012

JOSEPH ABUGA OKEBILO....................................APPELLANT

VERSUS

REPUBLIC..........................................................RESPONDENT

[Being an appeal from the judgment of the  Webuye  Senior Principal

Magistrate's court [C. Cherono (PM) delivered on 18th May 2012

in Webuye SPM's  criminal  case no. 945 of 2010.

JUDGMENT

1. In a judgment delivered on the  18th May 2012  in CMCC no. 945 of 2010 the appellant herein Abuga Okebilo was convicted and sentenced together with others not before court for stealing contrary to Section 275 of the Penal Code. He was fined Kshs. 100,000/- or  24 months imprisonment.  The said judgment is what gave rise to this appeal.  The Appellant filed his appeal on the 29th of May 2012, based on the following grounds.

1. “The learned  trial magistrate failed to find as he should have that it was not  established by the prosecution that that alleged stolen sum of money actually existed and was in possession  of the appellant.

2. “The learned trial magistrate  failed to find as he should have that the circumstantial evidence, if any was   insufficient to support a conviction.

3. “The learned  trial magistrate  erred in not finding that failure  to call the investigating officer was fatal to the prosecution case.

4. That the evidence in its totality was insufficient to support a finding of a case to answer leave alone support a  conviction.

5.  The learned trial magistrate failed to  evaluate the prosecutions evidence judiciously before reaching his verdict.

6. That the learned trial magistrate erred in not considering the submissions of  counsel for the appellant.

7. That the learned trial  magistrate  wrongly interpreted the law with regard to  circumstantial evidence.

8. That the learned trial magistrate's judgment was based on conjective   rather than on evidence.

9.  That the  judgment is barred in law and has occasioned a failure of  justice.

2.  In the trial court the 1st and 2nd accused were employees of Petro Oil  Company. The complainant in the case. The  3rd accused was a security  guard while the 4th accused the appellant herein worked for G4S who were contracted to collection and banking of proceeds of sale.  On behalf of the complainant the evidence before court may be summarized as follows;

3. Oscar Lugosi gave evidence to the effect that  the 1st accused was   assigned to  guard Petro  Petrol Station  within  Webuye by   petro security company limited.  On the night of 20. 7.10 the first accused reported an attack

The witness  went to the scene of crime replaced 1st accused with another  guard and proceeded to report the   matter to the police.  He stated further that  1St accused informed   him the attackers  found him in a car and  took   him  behind the petrol station where they tied him where other staff were.  The witnesses  gave general observations of the scene of crime including that  the one  Padlock to one door was cut, the grill squeezed, padlock  to a second door was missing and   the safe was open.  He could not tell whether the safe had been broken or not.

4.  PW2 Mawere Akinyi Orika Regional Manager Petro Oil Company Western Region testified that on 2nd June, 2010 she received a call from  Naiorbi regarding a robbery at their Webuye Station from a colleague one Robert Oluoch and her boss Irene Muchemi.  She learnt that the said station had   been robbed of Kshs. 700,000/=.      She visited the scene and found one Amos  Odhiambo who  took her round where  she found the  entrance open and  glass broken, A 2nd door leading to the safe  broken where and the safe open and no money inside.  She observed that  the safe had not been broken. It was  also her evidence that the safe had two keys;  One kept by  the station manager  and the  other by G4S. She identified 2nd accused as a petrol attendant at the Webuye Station. It was her testimony that on the fateful day  The station manager according to her was away off duty at the time of crime.

5. PW3 Zablon Juma Kerry is a controller who doubles up as a radio contractor and at times an assistant  crew commandant at G4S, his evidence mainly touched on  the operations on 18. 6.10 where he accompanied the appellant to collect and bank money. It was his evidence that on the said day the station manager  and the appellant entered the safe and brought money to the  counting store room, where the money was counted and receipted. Before  they  leaving the station  the appellant and the station manager went back to close the safe. As regards 2nd of June, 2010  the office of G4S received a report of a robbery and in the company of  4th accused  and a supervisor they visited the scene of crime where   they found a door  and the safe broken. It was his evidence also that   safe was locked by his colleague, the appellant and the station manager.  After the exercise the  key in  the G4S custody is usually returned to incharge of cash safe one Everlyne Wanamue. He confirmed that on the 21 .6. 10. the 4th accused  returned the key.

6. PW4  PC. Mulongo Tali force no. 61384  who testified that he visited scene of crime and examined the same  and made the following  observation.

a.  The  window pane  to the entry door was shattered though lock was intact.

b.  The padlock holder to the strong room was twisted and padlock was missing.

c.  The safe appeared to have been opened  carefully not broken into.

d.  The inside of the shop appeared  ransacked.

e.  There were no   suitable finger prints..

This is the first appellate court and t is  charged with the duty of studying the evidence afresh, evaluating  and analysingthe same  in order to arrive at an independent conclusion while   bearing in mind that the trial court had an opportunity to listen and see the witnesses.

7.  Having  considered the record it is evident that there was a robbery at Petrol Oil  Company limited Webuye on the 20th of June, 2010.  Although the  prosecution did not   produce evidence of the actual   amount stolen.  At the time of robbery accused 1,2 & 3  were present and  on duty.  There was no evidence that the  accused  and  the appellant was at the   scene on the material day and time. Several things  are stand out,   the keys to the safe are in custody of the station  manager  and  the  G4S group;

8.  The manager was  off duty and nothing is said regarding  the key  in his custody and where it  was on  the material day;  The appellant opened  and  the station manager  opened the safe. on 18th June, 2010; the appellant returned the key back to the officer in charge of G4S and this is what he said.

“Mr. Abuya had  his keys throughout on  18. 6.10”. when we went to Bungoma he handed over Eveline at around 4. 00 p.m”

9. The station manager did not   testify and  therefore there is no       information regarding the whereabouts of his keys . Secondly Evelyn of  G4S  was not a witness either  as she  would have   shed light as to the  whereabouts of the G4S keys on the  date of    the  theft. The circumstantial evidence adduced in court raises several questions that remained answered.  The prosecution in my view did not  do a good job. They left  information that  was  crucial to this case.  The gaps  left created doubt.  The 1st, 2nd and 3rd accused were at the scene of crime.  1St was the   watchman and  did not  react immediately to the  robbery.  2nd and 3rd accused were present as they  worked at petrol station. However  the appellant is not mentioned.  It is not clear whether the G4S key  was in his possession  and even if it was he had   the 2nd key as the safe was said to have been opened.  There  are unresolved   questions  that  create doubt.

The doubts that remain unresolved ought to be to the benefit of the appellant in any even. In the circumstances. I find that the prosecution failed to prove its case beyond reasonable doubt and I therefore  give the benefit of  the appellant.

The sentence  and conviction are  hereby set aside.  He is  set free unless otherwise  lawfully held.

Dated at Bungoma this 24th day of March 2015.

ALI-ARONI

JUDGE.