Joseph Maina Wachira v Republic [2013] KEHC 1328 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 183   OF 2012

JOSEPH MAINA WACHIRA    …………………………………APPELLANT

VERSUS

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

(AN APPEAL ARISING FROM THE ORIGINAL  CONVICTION  AND SENTENCE  IN CRIMINAL CASE NO. 1364  OF 2008  AT THE SENIOR  RESIDENT MAGISTRATE’S  COURT AT  BARICHO  ON 2. 3.2010)

JUDGMENT

The appellant JOSEPH MAINA WACHIRA was charged with the offence of robbery contrary to section 296(1) of the penal code.

The particulars  of the offence as stated in the charge sheet allege that on the 15th day of November, 2008 at Kagio Township in Kirinyaga  District  within Central Province, the appellant robbed STEPHEN WACHIRA MUTUGI  of his   bicycle make Fonex valued  at kshs 6,000  and at  or immediately before or after the time of such robbery used actual violence  to the said  STEPHEN WACHIRA MUTUGI .

The case proceeded to full hearing before the Resident Magistrate’s court at Baricho.  The Honourable trial magistrate HON.  J.N. MWANIKI in his judgment delivered on 2nd March, 2010 made a finding that the prosecution had proved its case against the appellant beyond any reasonable doubt.    He convicted the appellant and sentenced him to ten years imprisonment.

The appellant was dissatisfied with the judgment.  He filed this appeal against both conviction and sentence raising six grounds of appeal which I reproduce verbatim:-

The learned trial magistrate erred in law and infact by basing his conviction on a single sided evidence which was not corroborated by any other witnesses apart from the arresting officer and the area incharge who were not eye witnesses but acted on total hearsay.

The evidence adduced by the prosecution side was full of doubts and inconsistent as the two acted on total hearsay.

The trial magistrate erred in law by convicting me with an offence which was not proved beyond reasonable doubts.

The learned trial magistrate misdirected himself as to belief that I was positively identified while the evidence adduced by the PWI was to the contrary as he stated that he was attacked at night, he had no torch and there was no light.   How did he identify his assailants?

That the convictions are not in line with the evidence adduced.

The prosecution called a total of four witnesses.  Briefly, the prosecution case is that on 13th November, 2008 at about 5. a.m., the complainant who testified as PW 1 was riding his bicycle ferrying about 50 litres of milk for sale.  As he was riding over a bump, he was hit from behind and hand by some unknown assailants who also stole his bicycle valued at kshs 6,000.  He sustained some injuries and went to hospital for treatment.

PW2 JOHN MURIITHI KABAARA  an elder of Kagio town recalled that on 14th January,2008 (as reflected in the court record) members  of the public  found him at  his home and handed  over to  him the appellant  on the allegation that he had been found in possession of a stolen bicycle.  He stated that he did not know the appellant before.  He escorted the appellant to Kagio police post.  He handed him over to PW3 NO. 45458 P.C. Presco Ogot together with the recovered bicycle..

According to the evidence of PW3, the elders who handed over the appellant to him alleged that they had arrested him in an abandoned house which was under construction in possession of the bicycle.  He rearrested the appellant and took possession of the bicycle.  He recalled that earlier that morning, the complainant   had gone to the police post and reported to him that unknown people had stolen his bicycle on the previous day.  He stated that the complainant had visible injuries and he referred him to hospital for treatment.

PW2 and PW3  both confirmed  in their evidence that they were present at the police  post when PW 1 identified the recovered bicycle as the bicycle  which had been stolen from him on 13th November, 2008.  PW 3 added that PW1 handed over to him a receipt confirming purchase of the bicycle bearing Serial NO. 1004809.  As the appellant did not claim ownership of the bicycle nor explain its possession, he was charged with the offence which resulted in the conviction challenged in this appeal.

In his defence, the appellant gave a sworn statement .  He denied having committed  the offence.  He testified that  he was a resident of Endarasha and that on 13th November, 2008 , he had  gone to Kutus  to look for his sister .  He lost his money and walked to Kagio  where  on advise of a watchman, he hid in a house under construction near a road  to avoid being arrested by police  who allegedly conducted patrols in the course of the night.  He stated that early the following morning, a man  went to the abandoned house and retrieved a bicycle  from one of the rooms.  He was also arrested and escorted to the house of PW2  and later to the police station .  He testified that prior to the recovery  of a  bicycle , he had no knowledge of the existence of the bicycle  in the house as he had not seen it.

When the appeal came up for hearing on 15th November, 2013 , the appellant made oral submissions .  He drew the courts attention to an apparent contradiction  in dates given by the complainant relating to  when the offence was allegedly committed  and the date PW2 claimed he was handed over to him.

According to the court record, the offence was committed  on 13th November, 2008 but  the record  shows that PW2 testified  that the  appellant was handed  over to him on 14th January, 2008  together with  the recovered bicycle.

I am inclined to agree with Mr. Sitati for the state  that the indication of 14th January, 2008  in the court  record as opposed to 14thNovember , 2008  was caused  by a  typographical  error since a consideration  of the evidence of PW2 and PW3   as a whole shows that the appellant was handed over to PW2 and     PW3   on  14th November, 2008  and not 14th January, 2008. There was therefore no contradiction  in the evidence of PW1 and PW2.

In opposing  the appeal, Mr Sitati submitted that the evidence adduced before the appellant  in the lower court was credible and overwhelming .  He urged the court to dismiss the appeal for lack of merit.

This being a first appeal, this court has an obligation to  re-evaluate and reconsider  afresh the evidence on record against the appellant  in order to reach its own independent  conclusion as to whether the conviction  of the appellant  was sound and  well  founded in law.  This is of course bearing in mind  that this court did not have the benefit  of seeing or hearing the witness .   I am guided  in  this finding by  the following authorities:-

OKENO VR (1972) EA 32,

MWANGI VR (2004)2 KLR 28

KINYANJUI VR (2004) 2KLR 364

Having considered the evidence on record, and the judgment  of the learned  trial magistrate , I find that the appellant’s  conviction  was founded  on the  trial court’s  finding that the appellant  had been found  in possession of the complainants bicycle hours after  it had been stolen.  The learned trial  magistrate applied  the doctrine  of recent possession and  after  evaluating the appellants defence , he found it  unworthy of belief .  In his view , the appellant failed to offer a satisfactory explanation to rebut the presumption inherent  in the doctrine of recent possession which is to the effect that a person found in possession of recently stolen goods  is presumed to be either the person  who had stolen them or a handler of the  same knowing or having reason to believe that they were  stolen goods.   After reflecting    the appellants defence, the trial magistrate  concluded that the appellant must have been among the persons who had  stolen  the bicycle  from the complainant  and convicted him with the offence as charged

After re-evaluating the evidence tendered in the lower court, I find that it is clear from the evidence of PW 1 that he did not identify  his assailants  on the material day  who were also  the people who robbed him of the bicycle .None of the witnesses  who testified  in this case  was at the scene  of the robbery and none claimed  to have seen the appellant  committing  the offence .

This in  effect means that there was no direct  evidence before the  trial court  linking the appellant  to the commission  of the offence.  He was convicted on purely  circumstantial evidence  showing  that he had  been found in possession of the stolen bicycle  hours after  it had been stolen.  But for circumstantial  evidence to safely found a conviction, the law is that it must  point directly to the guilt of the accused  person as charged leaving  no possibility  for  his innocence .

In this case, I am satisfied that the fact of  possession of the stolen bicycle  which formed  the basis of the appellant’s  conviction  was not proved  beyond any reasonable doubt by the prosecution as required  by the law .

Unlawful Possession connotes  knowledge  of the existence  of the stolen goods and can be  either actual when a person  is found  in physical possession  of the goods or constructive where  though not having physical possession, an accused person is proved  to have had knowledge and control of the stolen goods .

In this case, the appellant  denied that he had any  knowledge  that  there was a bicycle anywhere  in the abandoned  house  in which he had allegedly sought refuge  on the evening  of 13th November, 2008 leave alone knowledge  that it was  stolen property.  He claimed that he had not seen any bicycle  but admitted  that a man  went there on 14th November, 2008  in the morning  and removed  a bicycle  from one of the rooms  where upon  he was arrested.  This claim by the appellant  which was made on oath implied that the bicycle was recovered  from a different  room  from  the room or place  the appellant  was found and arrested  .  If this was  the actual position, it would mean that the appellants claim that he had not seen the bicycle previously  or that he was not aware of its existence  was probably  true.

Though there is  no doubt  that the bicycle recovered  in that house was  the same bicycle that had been violently stolen from  the complainant  on 13th November, 2008, without proof  that the appellant  had knowledge of its existence  in that house  or that  he was found in its actual possession and he subsequently failed to account for its possession , there cannot be any basis for making a determination that the appellant  been found in possession of recently  stolen property and that the doctrine of recent possession applied  in his  case.  It is important to note that  none of the persons who arrested the appellant were called as witnesses by the prosecution to testify on the layout  of the said house  for  instance to shed light on whether it had  one or several rooms or to testify on the actual  circumstances surrounding the appellant’s arrest and recovery of the bicycle.  There was  therefore no evidence to show whether the appellant  was arrested from the same room  in which the stolen bicycle  was recovered  or he was  in a different room or place .

Since those people did not testify in this case , there was no evidence presented to the trial court to show    whether any circumstances existed from  which an inference  could be  drawn that the appellant  was aware of the existence of the stolen  bicycle  in the  house  in which he was arrested in the event that he was not arrested in its physical possession.

The appellant’s  claim in his defence  that he had been in that house  solely  for the purpose of seeking refuge  to avoid arrest by police officer s on patrol   in the course of the night  having been a stranger  in the neighbour hood  was not challenged by the prosecution.  Infact  the evidence of PW 2 seems to have supported  the appellants claim  when PW2 stated that though he was an  elder  in that area, he did not  know the appellant .  The appellant  had claimed that he hailed from Endarasha  and was a visitor  in Kagio area  where the offence was committed

In my considered  view, the appellant’s defence when compared  with the rest of the evidence  raised  reasonable doubts  in the prosecution’s case  whether or not he had been found in  unlawful possession of the bicycle  stolen from the complainant which doubts should  have been resolved  in his favour.

In view of the foregoing, it is my finding that the learned trial magistrate  erred  in not properly evaluating the evidence presented  before  him and  in finding that the prosecution had proved the charges against the appellant beyond any reasonable doubt.

In the end, I  find that the evidence on record  was not sufficient to sustain a safe conviction .

In the   circumstances, it is my decision that the appeal is merited.  I therefore allow the appeal, quash the conviction  and set aside the sentence .  The appellant  should be set free unless  otherwise  lawfully held.

C. W.GITHUA

JUDGE

DATED, SIGNED  and DELIVERED at KERUGOYA this 17TH day of OCTOBER,2013 in the presence of :-

The appellant

Ms Macharia  for the state

Kariuki Court clerk