Robert Kambuti Mburu & Adrian Odhiambo Olando v Republic [2022] KEHC 2704 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEALS NO. 97 AND, 100 OF 2018 (CONSOLIDATED)

ROBERT KAMBUTI MBURU.....................1ST APPELLANT

ADRIAN ODHIAMBO OLANDO ..............2ND APPELLANT

VERSUS

REPUBLIC..........................................................PROSECUTOR

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. J. B. KALO (CM)

DATED 31ST OCTOBER 2018 IN CRIMINAL CASE NO. 409 OF 2014)

JUDGEMENT.

1.  The Appellants herein, were charged before the Chief Magistrates Court with the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code.  Particulars of the offence were that on the night of 6th and 7th February 2014 at Sigotik Area, Kihingo Division, Njoro Sub-County, within Nakuru County jointly robbed Joseph Mwangi Mucami of Motor Vehicle Registration Number KBK 710Y Toyota NZE 121, Cell Phone make Nokia Anoking; IMEI Number xxxx and xxxx and driving licence C of C Number xxxxx (KTCO38) and immediately before and/or after the time of such robbery, did use personal violence to the said Joseph Mwangi Mucami

2.  The Appellants pleaded not guilty to the charge and the case proceeded to full trial where they were found guilty of the offence of Robbery with Violence and each sentenced to twenty-five (25) years imprisonment. Their other two accused were acquitted.

3.  Before looking at the substance of the appeal it shall be worthwhile to summarise the evidence as presented during trial.

4.  The prosecution called 12 witnesses in support of its case. PW1 Paul Kariuki Mbugua testified that he was a college principal at St Mark’s TTC. He also used to do taxi business. On 6/2/14 at 9. 30 pm, he was called by his taxi driver Joseph Mwangi Mucami who informed him that he was taking passengers to Kihugo from Nakuru town. The driver asked if he could meet him at his place but they agreed to meet the following day at his cousin’s funeral.

5.  At 12. 30 am, the wife to the driver called and informed him that she has been reaching his husband on phone in vain. She requested her to track the motor vehicle after which he saw the motor vehicle at Narok High School Location. They made several calls to find someone to help them. He then switched off the vehicle engine using his cell phone and the vehicle stalled near Haas Petrol station. He was given a number of a police officer in Narok, who went to the scene where the vehicle had stalled. The police officer told him that he had found people near the car and that he would arrest them and take them to the police station.

6.  PW1, his cousin Kimani, Joseph Mwangi’s wife and son travelled to Narok and arrived at 6 a.m. where he was shown the people who were arrested but he couldn’t recognize them. They were three men and two ladies. When they arrived at Narok the driver of the motor vehicle was not present. The motor vehicle was slightly damaged on the front bumper and could not start. One of the fog lights was missing. The tracking company had disabled the motor vehicle engine. There were blood stains on the driver’s seat and a piece of belt inside the motor vehicle. The Driving Licence and cell phone of the driver of the motor vehicle Joseph Mwangi were recovered from the motor vehicle. The District Criminal Investigations Officer (DCIO) Narok District conducted investigations and information was received to the effect that the driver’s body had been found dumped at Njoro. PW1 was requested by the DCIO to arrange for the body to be moved to Nakuru.

7.  The witness testified that he bought the motor vehicle KBK 710 Y Toyota NZE from Bethwell Maina Ndirangu for Kshs 605,000 part of which was financed by a loan from Equity Bank Ltd. A motor vehicle sale agreement dated 2nd October 2013 between the witness and Bethwell Maina Ndirangu was marked PMFI 3 and a letter from Equity Bank Ltd was marked PMFI 4. The tracking device was installed by Sunrise Tracking System and a certificate of installation and instructions were issued. The same were marked PMFI 5a and PMFI 5b respectively. The witness was told by the DCIO that the people who had been arrested had strangled the driver. The witness stated that the people he was shown at Narok Police Station were the accused persons before court.

8.  Upon cross-examination by Mr. Ochang for the 4th and 5th accused persons, the witness confirmed that he was not present when the vehicle was recovered. He said that the 5 people who were found where the vehicle was were claiming that vehicle was theirs. The witness was not told whether the people were inside or outside the motor vehicle. The witness recorded his statement based on his own knowledge and on information, a day after he had seen the accused persons and the motor vehicle. The items recovered from the motor vehicle, a Driving Licence and a cell phone, had already been removed from the motor vehicle. Police told him the cell phone was found in the hand bag of one of the ladies.

9.  Upon cross-examination by the 2nd accused person, the witness confirmed that the driver of the motor vehicle did not tell him the number of passengers he had. The motor vehicle had a tracking device but the witness could not remotely tell the number of people therein. The witness recorded his statement after seeing the accused persons. He did not know the accused persons prior and had not done any business with any of them. The police officer who first arrived where the motor vehicle was, told the witness that he found five people at the scene. The motor vehicle was handed back to the witness after two days and he later sold it. The witness did not see the motor vehicle being dusted for finger prints.

10. PW2 Peter Kimani Njoroge testified that he was a resident of Pipeline and a businessman. On the night of 6th February 2014 he was at a funeral of Joseph Mungai when his cousin Wanjiku told him that her husband was not reachable on phone. She told him that the owner of the motor vehicle her husband was driving one Paul Kariuki, had told her the motor vehicle had been traced at Narok. The witness suggested they call a teacher who resided in Narok. Chief Ngethe called the teacher, Mr Karoki, who started looking for the motor vehicle. He went to Narok Police Station where he was given a telephone number of a police officer.

11.  He sent the number to PW2 who in turn sent it to Kariuki (PW1), the owner of the motor vehicle. Kariuki called the police officer and was informed that the motor vehicle had been found at Mummy’s hotel near Haas Petrol Station in Narok town. PW2, Wanjiku, Musembi (Wanjiku’s son) and Paul Kariuki travelled to Narok where they arrived at 6am. They proceeded to the police station where they were shown three men and two women and asked if they knew them. The witness could not recognise any of the people. He saw the motor vehicle parked outside Narok Police Station. It was registration number KBK 710Y. The team travelled back to Nakuru. PW2 could not recall whether the people he saw at Narok Police Station were the accused persons before court.

12.  Upon cross-examination by Mr. Otieno for the 1st and 3rd accused person’s, PW2 confirmed that he did not know the police officer who was called to go and look for the vehicle and that he wasn’t aware if the vehicle was driven or towed to the station. Under cross-examination by Mr Ochang’ for the 4th and 5th accused persons, the witness confirmed that he did not move near the motor vehicle at Narok Police Station and therefore he did not see what was inside.

13.  PW3 Eric Mwangi Mucami testified on oath that he was a resident of Bahati and a student at Rift Valley Institute of Science and Technology. On 6th February 2014 at 3pm he went to Shirk Park View Hotel where his father ran a taxi business. He then proceeded to a funeral at Pipeline. His father promised to pick him from the funeral at 10pm. By midnight he had not done so and the witness’s mother tried calling him in vain as his phone went unanswered. Later the witness's father phone went out of reach. The witness's mother called the owner of the motor vehicle Mr Kariuki and informed him of the unsuccessful attempts she had made to reach her husband. Mr Kariuki informed her that he had tracked the motor vehicle and it was headed towards Narok and on high speed hence it could not be switched off. He eventually managed to switch off the motor vehicle when it stopped at a Petrol Station in Narok town. Peter Kimani (PW2) called someone at Narok who was directed to go to Narok Police. He did as directed and obtained a number of a police officer which he gave to the team in Nakuru.

14.  The witness and his mother were told the motor vehicle had been sited at Haas Petrol Station at Narok town. The police officer said he had gone to the petrol station where he saw the motor vehicle and that three men and two ladies had been arrested near the motor vehicle. The motor vehicle was registration number KBK 710Y. Police told the witness that the people who had been arrested denied knowing Joseph Mwangi. The witness and Kariuki, Kimani and Tabitha travelled to Narok where they arrived at 6am. They were shown the motor vehicle which they positively identified. They were also shown items that were recovered from the motor vehicle, being a telephone and a Driving Licence.

15.  They identified the items as belonging to Joseph Mwangi. The witness testified that he did not see a second Driving Licence. He testified that police showed them five people in the police cells who the police said had been found near the motor vehicle. On their way back to Nakuru they were called by the DCIO and informed that a body had been found dumped at Kihingo in Njoro and had been taken to Provincial General Hospital (PGH) Nakuru mortuary. They proceeded to the mortuary where they identified the body as that of Joseph Mwangi his father. On 11th February 2014 the witness and the DCIO Njoro went to PGH mortuary to witness the post mortem. The witness identified the body. The witness identified the accused persons before court as the suspects he saw at Narok Police Station.

16.  Upon cross-examination by the 2nd accused person, PW3 confirmed that he wasn’t aware of the specific time the vehicle was recovered and that the police informed him that they had stopped at a distance and seen three men around the vehicle.

17.  PW4 Teresia Wanjiku Migwi testified on oath that she was a resident of Bahati and a house wife. She did not know the accused persons before court. On 6th February 2014 she and her husband Joseph Mwangi travelled from Bahati to Pipeline where she was to attend a funeral. They agreed that her husband would pick her from the funeral at 10pm and her husband proceeded to Nakuru town where he worked as taxi driver. Her husband did not turn up at 10pm as agreed. The witness called him at midnight but he did not pick his phone. She tried using her sister Debora’s phone but still her husband did not pick. She called her husband’s employer Mr Mbugua Kariuki and informed him that she was unable to reach her husband and asked him to track the motor vehicle using the tracking device on his phone. Mr Mbugua called her after five minutes and informed her that he had tracked the motor vehicle at Narok and that he had remotely switched it off. The witness’s cousin Mr Kimani suggested that they call someone in Narok to assist in reaching her husband. They called a person in Narok who gave them a number of a police officer. They called the police officer who offered to assist them. After about fifteen minutes the police officer called the witness’s cousin and informed him that the motor vehicle had been located.

18.  The witness talked to the police officer who told her there were five people in the motor vehicle. She asked the police officer to ask them whether any of them was called Joseph Mwangi Mucami. The police officer informed her that none of them had responded to that name. The witness, her son Eric Mucami, her cousin, travelled to Njoro in her brother’s vehicle where they were joined by the owner of the motor vehicle and they all proceeded to Narok where they arrived at 5am and went to Narok Police Station.

19.  At the station they were taken to where the motor vehicle was parked within the police station and they confirmed that it is the one the witness’s husband was driving, being registration number KBK 710Y. The witness saw a belt and a piece of metal in the motor vehicle. There were bloodstains on the driver’s seat. They were taken into the station and people were called from the police cells. They were told by the police that three men and two women had been arrested while inside the motor vehicle. The witness identified the accused persons before court as the people they were shown at Narok Police Station. The witness was shown a Driving Licence and a cell phone make Nokia and she identified them as belonging to her husband.

20.  At around l PM they left Narok for Nakuru. While on the way she received a call from a person who identified himself as a police officer and told her that her husband’s body had been discovered at Kihingo and taken to PGH mortuary. They proceeded to the mortuary and the witness identified her husband’s body. On 8th February 2014 she recorded her statement. She was shown photographs marked PMFI 6a and PMFI 6b and she confirmed they were photographs of her husband's body. She testified that her husband’s body had injuries on the head, eyes and ears.

21.  On cross examination, the witness confirmed that she saw a piece of metal in the car and blood stains on the driver’s car seat. She stated that she couldn’t tell if the five people were found inside or outside the vehicle.

22.  PW5 Police Constable Impwi Andrew Mugambi testified that he was attached to Narok Police Station performing radio room duties. On 6th February 2014 he received a call from a person known as Paul Kariuki who reported that he was a car tracker with a car tracking company in Nakuru and a client’s motor vehicle registration number KBK 710Y that had been carjacked within Njoro area and was heading towards Narok. The witness immediately called the duty officer of the day Corporal Antony Irauka and passed the information. The witness maintained communication with the car tracker while relaying the information he received to the duty officer. The tracker informed the witness that the motor vehicle had been located at Haas Petrol Station.

23.  The witness informed the duty officer accordingly. After a short while the duty officer called the witness and informed him that he had arrested five occupants inside the motor vehicle. The witness rushed to the scene at Narok Township to assist the duty officer take the suspects to the police station. When the witness arrived at Hass Petrol Station he found the duty officer, the Crime Standby for the day PC Kung’u and PC driver Murage. He also found five suspects under arrest inside the police motor vehicle, a Toyota Land Cruiser.

24.  The witness demanded for the suspects’ mobile phones and they were handed over to him. One of them dropped a certain black mobile phone, a Nokia, inside the police vehicle but he did not see who dropped the phone. The witness recovered the mobile phone. The witness was shown a black Nokia mobile phone that had been marked PMFI 3 and he confirmed it is the one that was dropped in the police motor vehicle. The witness and his colleagues suspected that the mobile phone was owned by the owner of the motor vehicle.

25.  Later the witness and his colleagues searched the motor vehicle and recovered from the co-driver’s seat one manila rope. The same was before court and was marked PMFI 8. Also recovered was a brown belt in two pieces marked PMFI 9a and PMFI 9b. The witness noticed blood stains on all the seats. The witness enquired from the suspects where they were coming from with the motor vehicle and one of them said they had been offered a lift by a friend. The suspects were later taken to Narok Police Station by the duty officer. A member of the public assisted to tow the motor vehicle using a Nissan Matatu to the police station. The suspects were booked for the offence of robbery with violence. The witness identified the accused persons before court as the people who were arrested that night.

26.  On cross-examination the witness confirmed that there were several motor bike riders about 15 -20 who had surrounded the motor vehicle. The accused persons were seated inside the police land cruiser at the back. He also confirmed that he recorded a statement in which he indicated that the blood stains were on the dash board but he confirmed that the blood stains were all over. He also confirmed that he was not the investigating officer as he only went to assist in arresting the suspects. He stated that he is the one who removed the manila rope and the belt from the vehicle and that he did so in the presence of the other 3 officers while the suspects were in the police motor vehicle.

27.  The suspects did not participate in the recovery of the items from the motor vehicle. The witness could not tell whether he was the first person to access the motor vehicle’s interior. The witness did not know whether the accused persons were found inside the motor vehicle. The duty officer called the witness to identify the motor vehicle and confirm that it was the one he was communicating about. The witness saw blood stains on the dash board. The witness did not see any police officer take photographs of the interior of the motor vehicle. The witness recovered at least one mobile phone from each suspect. The black Nokia mobile phone was dropped inside the police motor vehicle as the witness was collecting mobile phones from the suspects.

28.  PW6 PC Ronald Chemosit testified on oath that he was attached to DCI office Narok. On 7th February 2014 at 8am he received a call from Corporal Daniel Gatimu who was acting DCIO. He was instructed to proceed to Narok Police Station and temporarily book five suspects who were in custody having been arrested overnight by the duty officer Narok Police Station Corporal James Irauka and his team. The witness was given the names of the five suspects and he booked them for temporary removal and took them to the DCI Office for interrogation on how they got the motor vehicle registration number KBK 710Y. He was joined by Corporal Gatimu and other officers.

29.  Before commencing the interrogation, he proceeded to where the motor vehicle had been parked. He peeped through the window and established that there were blood stains on the rear seat and it seemed there was a struggle in the motor vehicle from the way the seats were arranged. He went back to the DCI Office and they started interrogating the suspects. During interrogation the suspects opened up and stated how they had hired the motor vehicle KBK 710Y from Nakuru. On the way they robbed the driver of the motor vehicle and murdered him. They dumped the body of the driver at a place called Kajui. At that time officers from Njoro arrived at the station. The witness established that the 1st accused person was wearing a T-shirt that had blood stains. The T-shirt had the numbering 1125154885.

30.  It was produced before court and marked PMFI 10. John Mwangi Njoroge the 3rd accused person was wearing a grey blue black stripped short sleeved shirt make G-star and one white sweater both with blood stains. The witness handed over the three exhibits to the officers from Njoro. The witness saw the motor vehicle parked at the police parking yard at Narok. He then witnessed and signed a Search Inventory dated 7th February 2014. He witnessed the recoveries from the respective suspects as listed below:

1) 1st accused Adrian Odhiambo Olando: a) White T-Shirt No. 1125154885 b) Mobile phone serial number 35208804357240/2

2) 2nd accused Robert Kabuti Mburu: a) Mobile phone Samsung black with white flap cover IMEI No. 359987045605065 and IMEI No. 359987045605073 b) Vodafone black IMEI No. 353307044967182

3) 3rd accused John Mwangi Njoroge: a) A grey blue black stripped short sleeved shirt (G-star) blood stained b) Mobile phone black Samsung IMEI No. 35685304534843/2 c) Mobile phone silver red Samsung IMEI No. 355667956056250 and IMEI No. 355667956056268 d) Grey long sleeved jumper blood stained

4) 4th accused Hellen Gathoni Karanja: a) Mobile phone red in colour Samsung IMEI No. 8653570148953551 and IMEI No. 865357014995342

5) 5th accused Risper Wangechi Gacheru: a) Mobile phone Samsung grey/white IMEI No. 35640305454586736 and IMEI No. 3564040545586734 b) Mobile phone Nokia black for the deceased

31.  The witness signed the Search Inventory and Corporal Irauka and PC Kung’u witnessed. The witness booked the accused persons temporarily from the police cells to the DCI Office. He identified the accused persons before court as the ones he had interrogated at DCI Office Narok.

32.  On cross-examination by Mr Otieno for the 1st and 3rd accused persons, the witness testified that his role in the case was to investigate the motor vehicle that accused persons were in possession of. The Search Inventory was prepared by CPL Paul Kiili and CPL Antony Irauka. The witness could not tell where the shirt and sweater were. During the time of preparation of the inventory each accused person was asked to take his or her mobile phone. Other than noting the IMEI numbers there was no other process of establishing the ownership of the mobile phones.

33.  He also confirmed that he interrogated five suspects including the 2nd accused person who confessed to committing the crime but the witness did not record the confession. What connected the 2nd accused to the case was the fact that they told the interrogators where they dumped the body. The witness did not have any other tangible evidence connecting the 2nd accused person to the crime.

34.  Under cross-examination by Mr Ochang for the 4th and 5th accused persons, the witness testified that he was a police constable and therefore not qualified to record a confession. The witness was not aware whether the Investigating Officer followed the procedure for recording a confession. The witness testified that the suspects were not tortured during interrogation which lasted for about one hour. The suspects signed the Inventory voluntarily. The witness did not visit the scene where the motor vehicle was recovered.

35.  The witness could not recall whether the suspects signed the Inventory before the officers signed it. The witness testified that the motor vehicle was not opened in his presence and that he peeped through the window. The witness testified that it was the role of the Investigating Officer to connect the mobile phones to the accused persons. He testified that two mobile phones were recovered from the 5th accused person being a Samsung grey/white and a black Nokia but he is not the one who recovered the phones. He was not aware that one of the mobile phones had been dropped in the police motor vehicle. He could not tell which specific officer recovered the mobile phones from the accused and testified further that the case was being handled by himself, PC Mugambi, PC Kung’u and corporal Irauka. The witness testified that all the accused persons informed the interrogators how they had hired the motor vehicle. He said that he did not record anything electronically and that he did not participate in the arrest of the accused persons.

36.  PW7 SGT Jackson Gamba testified that at the time of the incident he was based at Subukia AP Post Kihingo Division. On 7th February 2014 at 6:30 am he was on duty when he received a call from a member of the public who informed him that a human body had been spotted beside the road near Amani Shopping Centre in Mauche Division. The witness and a colleague Bernard Simiyu proceeded to the scene and found a body of a male adult in a thicket near the road. There was a jacket beside the body. The body was lying facing down. There were injuries to the face. The witness was shown photographs marked MPFI 13 a, b, c, d, e, f and g and he described them.

37. The body was beside the road on the left side while facing the general direction of Mau Narok Shopping Centre, about ten kilometres from the Mau Narok road. The officers secured the scene then the witness called OCS Njoro Police Station Mr Walima who instructed him to remain at the scene as he sent scene of crime officers. The scene of crime officers arrived at the scene, took photographs and collected the body.

38. Under cross-examination by Mr Otieno for the 1st and 3rd accused persons, the witness testified that the body was near the road in a thicket and there was no building nearby. The witness also confirmed that he did not have the telephone number of the member of the public who called him and that the person was not a witness in the case.

39. Upon cross-examination by Mr Ochang for the 4th and 5th accused persons, he confirmed that he was the first police officer to arrive at the scene where the body was recovered. He studied the scene and there were no signs of motor vehicle tyre marks. The scene looked like the body had been dumped and dragged on the ground. There were shoe marks at the scene and the scene was disturbed. The witness was present when the photographs were taken and they did not show a jacket. The witness did not have any link between the body and the accused persons. The witness did not see a wire at the scene.

40. PW8 Dr Daniel Wainaina testified that on 11th February 2014 he was requested to examine the body of Joseph Mwangi by the OCPD Njoro to ascertain the cause of death. The body was lying at the mortuary in Nakuru. The body was of an African male adult wearing a blue shirt and a blue pair of trousers that had blood stains and were dirty with leaves and grass. He was muscular and was 5 feet 9 inches in height. The body was well preserved. It was swollen on the right side of the head and there was swelling around the right eye. There were bruises on the right side of the head.

41.  The body had multiple bruises on the neck, upper limb and trunk. On further examination there was marked swelling of the scalp over the right side of head with massive bleeding and a hair line fracture of the right temporal bone. The body had a broken upper neck with the spine at the neck area compressed. The body also had neck and spinal injuries with signs of strangulation. As a result of the examination the witness formed the opinion that the cause of death was severe head injury following blunt force trauma to the head.

42.  Blood samples were taken from the five accused persons that were taken together with the deceased's clothes for matching. The witness signed the post mortem report on 11th February 2014 and produced it in evidence as P Exhibit 7.

43.  Under cross-examination by Mr Ochang for the 1st ,4th and 5th accused persons, the witness testified that it was likely the strangulation was through physical pressure exerted with bear hands. There were no physical nail marks. The bruises were caused by blunt trauma following being hit by a blunt object. The deceased’s body was identified by Eric Mwangi and Paul Kariuki Mbugua. The accused persons did not witness the post mortem. The witness did not try to ascertain the exact time of death as it was already indicated that the death occurred on the night of 6th February 2014.

44.  Under cross-examination by the 2nd accused person, the witness confirmed that the extraction of the accused persons’ blood samples was done at the County Public Mortuary as captured in the report. He then handed over the blood samples and the deceased’s clothes to the Investigating Officer for onward transmission to the Government Chemist for analysis.

45.  PW9 Sgt Antony Irauka testified that on 6th February 2014 he was the duty officer at Narok Police Station together with his colleagues Eric Kung’u and driver Murage. They had motor vehicle GKA 640G Toyota Land Cruiser and were on patrol duties at Narok town. At around 3:55am they were called by the controller and told that there was a motor vehicle that had been stolen at Nakuru being registration number KBK 710Y Toyota Corolla. The information was received from Nakuru Police Station and it was feared the driver was in the motor vehicle.

46. They commenced a search for the motor vehicle. After a short while the controller called them and told them the owner of the motor vehicle had called and informed them that the vehicle had been tracked to Narok and it had been remotely switched off. They proceeded to Haas petrol station and found the motor vehicle with the bonnet open. They challenged the three men who had the motor vehicle to lay down or be shot. They handcuffed the three men and detained them in the police motor vehicle. They said they were going to Nairobi when the motor vehicle broke down.

47.  The police informed them that the motor vehicle had been stolen from Nakuru and was being driven toward Nairobi through Narok. There were motorcyclists who were trying to repair the motor vehicle. When the motorcyclists heard that the motor vehicle had been stolen, they informed the police that there were two ladies who were together with the three men and had gone to Haas Petrol Station.

48.  The police driver went to the Haas Petrol Station and found two ladies in the toilet. He enquired from them what they were doing and they informed him that they were going to Nairobi but their motor vehicle had broken down. He brought the ladies to where the other police officers and the men were. The police officers asked the ladies what they were doing with the three men and said they had been offered a lift by the three men to Nairobi. The police officers placed the suspects in the police motor vehicle and conducted a search of the motor vehicle. They recovered eight phones and a black handbag. The handbag was marked PMFI 14. A nylon rope was also recovered. The witness identified it as PMFI 8. The witness identified the eight phones as PMFI 12a, b, c, d, e, f and g. The motor vehicle was towed to Narok Police Station.

49.  The suspects were placed under arrest and locked in the police cells. The police officers informed DCI Njoro that the motor vehicle had been recovered and the occupants placed under arrest. The following day DCI Njoro took the suspects from Narok Police Station. The witness recorded a statement at DCI Narok. An Inventory of the recovered items was prepared and all the suspects signed it. The witness also signed the Inventory to confirm the things had been recovered from the motor vehicle and handed over to DCI Njoro. The witness identified the accused persons before court as the people he handed over to DCI Njoro.

50.  Under cross-examination by Mr Ochang for the 1st,4th and 5th accused persons, the witness testified that the three men were outside the motor vehicle trying to repair it. It was around 3:55 a.m. and it was dark. There were more than three people near the motor vehicle. The 1st, 2nd and 3rd accused persons said they resided in Kayole but they were going to Nairobi and the motor vehicle had broken down. Onlookers said they saw the motor vehicle stop with five occupants inside but they refused to record statements. The ladies said they had been offered a lift from Nakuru and were not aware that the motor vehicle had been stolen. The witness confirmed that his statement stated that the 4th and 5th accused had been given a lift to Nairobi but does not say it was from Nakuru. The 4th and 5th accused handbag was found in the boot of the motor vehicle. The Inventory shows the hand bag belongs to Risper Wangechi.

51. The deceased’s phone was recovered from the handbag although initially Risper Wangechi had said the deceased’s phone was hers. Each accused person was asked to pick his/her phone and bag. Risper picked the bag and the deceased's phone, a black Nokia, was found in the bag. The phones were taken to the police station and recorded in the Occurrence Book. The following day DCI Njoro asked everyone to pick their phone but the witness was not present when the accused persons were picking their phones. The initial Inventory was prepared at the scene. It was not captured in the witness’s statement that the phone was found in the bag. Also recovered from the motor vehicle were a grey long sleeved jumper, a white T-shirt and grey and black stripped shirt. The T-shirt was on the front seat. The witness could not tell if the clothes were found in the boot. Two Driving Licences were recovered from the motor vehicle but were not captured in the Inventory nor were they mentioned in the witness's statement.

52. Under cross-examination by the 2nd accused person, the witness testified that he was the arresting officer. He arrested the accused persons at Haas Petrol Station. The 2nd accused person was trying to repair the motor vehicle although that was not captured in the witness’s statement. There were people present when the accused persons were asked what they were doing with the motor vehicle but they did not record statements because they were uncooperative.

53. PW10 PC Caleb Simbiri testified on oath that he is attached to DCI Headquarters Nairobi as a crime scene officer. He knew Henry Kiboma who was attached to Crime Scene Support services Narok having worked with him. On 7th February 11:30am the witness was called upon by CPL Patrick Muriuki of DCI Njoro who took him to Nessuit location Sibotik Sub-location Njoro to a scene where a body had been dumped. The witness processed the scene and took the photographs numbered 1, 2, 3 and 4 and prepared a certificate dated 24th May 2014.  He produced the photographs as P Exhibit 13a, b, c and d and the certificate as P Exhibit 15. The witness testified that he was aware of motor vehicle registration KBK 710Y that was at Narok Police Station which he had been requested to photograph. He delegated the duties to PC Kiboma who was at the said station. PC Kiboma took five photographs of the motor vehicle.

54.  Upon cross-examination by Mr Ochang for the 1st, 4th and 5th accused persons, the witness testified that when he arrived at the scene where the body was found he noted that it was a busy place adjacent to the road and that it had been tampered by onlookers. The body was very close to the road. Motor vehicle KBK 710Y was not at the scene when he arrived and there was nothing next to the body.

55. Under cross-examination by the 2nd accused person, the witness testified that he arrived at the scene on 7th February 2014 at 11:30 am. He filled his certificate on 22nd May 2014. He photographed the body as he found it. He did not see a jacket next to the body. In re-examination the witness testified that P Exhibit 13 showed the body, people in the background and a police vehicle and a jacket. The jacket was inside the bush.

56. PW11 PC Patrick Muriuki testified that he was stationed at DC Njoro performing general criminal investigation duties. On the morning of 7th February 2014 he was called by DCIO Nakuru Mr Mbogo who enquired whether the witness had received a report of a stolen motor vehicle. He confirmed that no report had been received the previous night. The witness received communication from an Administration Police Officer from Subukia that he had received a report that a body had been dumped by the roadside. The witness received information from Narok Police Station that suspects who had been arrested had told the police that they killed a driver of the motor vehicle and dumped the body in the jurisdiction of DCI Njoro. The witness visited the scene and called scene of crime officers to photograph the body. The body, which had no documents on it, was later taken to the mortuary.

57. The witness and his team proceeded to Narok to check on the suspects who had been arrested and the owner of the motor vehicle Mr Kimani. Officers at Narok told the him and his team that they had taken an inventory of items recovered from the suspects that included the stolen motor vehicle, a mobile phone of the deceased, the deceased’s Driving Licence and personal belongings of the suspects. The owner of the motor vehicle told the witness that the driver had been abducted in Nakuru and that he had switched off the motor vehicle remotely and informed the police. The motor vehicle had been traced at Narok. The suspects were handed over to him and his team and they took them to Njoro.

58. The suspects told the witness and his team that they had travelled from Kayole in Nairobi to steal a motor vehicle and were returning to Nairobi after killing the driver. The witness preferred the charge before court against the accused persons. He testified that five suspects, three men and two women were arrested.

59. The witness testified that the 5th accused person was found in possession of the deceased’s mobile phone as per the Inventory marked PMFI 11 a-d. The witness produced the Inventory as P Exhibit 11 a, b, c and d. He testified that the motor vehicle belonged to Paul Kariuki Mbugua and he produced an agreement with Equity Bank as P Exhibit 4. He also produced a sale agreement between Paul Kariuki Mbugua and James Chege Wairimu dated 2nd October 2013 as P Exhibit 3. He produced certificates of installation of a tracking system by Sunrise Tracking Services as P Exhibit 5a and 5b. He produced the deceased’s mobile phone, a Nokia black, as P Exhibit 2. He testified further that as per the inventory Adrian Odhiambo Olando had a Samsung mobile phone, John Mwangi Njoroge had a black Samsung mobile phone and a red Samsung mobile phone, Robert Kamboti Mburu had a Samsung mobile phone with a flap and a Vodafone mobile phone, Hellen Gathoni Karanja had a Samsung mobile phone and Risper Gathoni had a Samsung mobile phone and the deceased's mobile phone. The witness produced the mobile phones as P Exhibit 12a, b, c, d, e, f and g.

60.  The further testified that two pieces of a belt and a hat belonging to the deceased were recovered from the motor vehicle. He produced the pieces of belt as P Exhibit 9a and 9b and the hat as P Exhibit 17. He produced the deceased's Driving Licence as P Exhibit 1. He produced a Driving Licence belonging to Njoroge John Mwangi as P Exhibit 18. The witness testified that a rope was found in the vehicle and he produced it as P Exhibit g. He testified that a T-shirt was recovered from Adrian Odhiambo Olando with blood stains and he produced it as P Exhibit 10. He produced a shirt that was recovered from John Mwangi Njoroge as P Exhibit 19 and a handbag belonging to Risper Wangechi as P Exhibit 14. The witness testified that blood samples were taken from the deceased and the accused persons for analysis. The report from the Government Chemist was marked PMFI 20.

61. Under cross-examination by Mr Ochang he said that the accused persons were wearing the clothes he had produced. The witness did not participate in the recovery of the items listed in the Inventory nor did he sign the Inventory. He was the Investigating Officer because the body of the deceased was recovered in Njoro. He was not present when the mobile phones were recovered and he was relying on the Inventory. There were no alterations on the Inventory. Risper Wangechi was found with a Samsung mobile phone and a Nokia mobile phone black in colour that belonged to the deceased. The deceased’s mobile phone was identified by his widow. The witness did not confirm the ownership of the SIM cards in the phones with the service providers.  He said that the accused persons said they were involved in crime but there was no confession.

62. The 4th and 5th accused persons stated that they had been offered a lift to Nairobi by the 1st, 2nd and 3rd accused persons and the witness had no reason to dispute that. The accused persons were arrested at Haas Petrol Station and that the two ladies were in the toilets at the petrol station according to the arresting officer.

63. He first saw the accused persons at Narok and they were in the same clothes they had been arrested in which had blood stains. The witness testified that the blood stains may have come from the deceased. He added that the accused persons were not tortured. He testified that the scene where the body was recovered was not interfered with much, and there were footprints near the body. He testified that he saw the shoes the accused persons were wearing but he could not remember what type of shoes they were. The witness testified that the accused persons were arrested while trying to re-start the motor vehicle. He testified further that the motor vehicle was dusted but the results were not positive. He testified that the black bag that was recovered from Risper Wangechi was not part of the inventory.

64. PW1 Henry Kiptoo Sang a government analyst based at the government Chemist, testified that his duties are human blood analysis especially Deoxyribonucleic acid (DNA), their presence and relationship with other samples submitted. He stated that on 20th March certain items were received in the Government Chemist Nairobi and he was requested to conduct a DNA analysis on the items, generate DNA profiles and determine any relationships. The witness examined the items and came up with the following findings:

1) No blood stains were detected on both the T-shirt item “G” ad the jumper item “I”

2) The shirt item “H” was very lightly stained with human blood

3) The blood sample of Joseph Mucami Mwangi was putrid (decomposed) and attempts to generate DNA profiles from it were unsuccessful

65.  The witness conducted a DNA analysis on the blood stained shirt and other samples. The DNA profiles generated from the samples and the blood stained shirt were tabulated in his report. Based on the DNA profiles, the witness came up with the conclusion that the DNA profiles generated on the blood stains on the shirt (item “H”) matched those of John Mwangi Njoroge. The witness prepared his report and signed it on 24th May 2015. He produced the same as P Exhibit 20.

66. Under cross-examination by Mr Ochang for the 1st, 4th and 5th accused persons, the witness testified that he was required to do a DNA analysis to the blood sample marked “B” and do comparisons to blood on the white T-shirt, whitish jumper and checked shirt. Pertaining to “B” there was no match with any of the samples, same to samples marked “D” and “E”. There was no blood relationship between blood samples marked “B”, “D” and “E” with the blood sample on the shirt. The witness was to establish the relationship between sample “A” and the blood stains on the shirt, jumper and checked shirt. The blood on the shirt was well preserved because it was air dried.

67. Under cross-examination by Mr Otieno for the 3rd accused person, the Witness testified that it was not disclosed from what source the white T-shirt, whitish jumper and checked shirt were obtained from. The witness testified that even if blood sample “A” was not putrid, his findings would not have been different.

68. At the close of the prosecution case, the court found and ruled that a prima facie case had been established against the accused persons. Consequently, the accused persons were placed on their defence in compliance with section 211 of the Criminal Procedure Code. They all elected to give sworn testimony.

69. The 2nd appellant AdrianOdhiambo Olando, testified on oath that he was a resident of Pipeline Estate in Nairobi and an employee of Morrison Engineering Company as a technician. Prior to his arrest he had worked for a period of three years and his duties entailed servicing of fire extinguishers and alarms. On 13th February 2014 he was at his ancestral home at Homa Bay to visit a sick aunt. He was to travel back to Nairobi on 13th February 2014. He started the journey from Homa Bay on board a Transline bus which arrived at Narok at between 12:30am. The bus stopped at Rocklands Restaurant. He had a bus ticket which he showed to the police at the time of arrest as he was moving from the restaurant back into the bus.

70. There was a commotion about fifty metres from the bus and he decided to walk towards the commotion. He saw police officers and he was arrested. He showed the police officers his bus ticket but they took it from him and never returned. He did not understand what caused the commotion. Many people were arrested. He was taken to Narok Police Station in a police motor vehicle, a Land Cruiser, together with other people but was not told the reason for his arrest.

71. The following day he was taken to the office of the DCIO where he met the co accused persons. He denied being a passenger in motor vehicle KBK 710Y and stated that he was not arrested while trying to repair the motor vehicle. He testified further that he had his mobile phone when he was arrested and that he had once passed through Nakuru town from Nairobi. He added that the charge he was facing was strange to him and that he did not know Joseph Mwangi Mucami. He prayed to be acquitted of the charge and added that he had suffered for an offence he did not commit.

72. Under cross-examination by Ms Serling for the state, he said that Morrison Engineering Company was based at Nairobi. The documents he had, to confirm he was working with the company were taken away by the arresting officer. He did not have anything to show that he complained that the police took his bus ticket. He did not have a witness to attest that he was travelling from Homa Bay to Nairobi. His mobile phone was among the ones produced in evidence. On re-examination, the witness testified that he had his mobile phone when he was arrested and he saw it in court but could not explain how it got to court.

73. The 1st appellant Robert Kaboti Mburu, testified on oath that he was a resident of Kayole Estate Naivasha where he had lived for about four years prior to his arrest. He was working as a mobile mechanic operating along Naivasha-MaiMahiu-Narok - Nairobi road. He had placed his mobile phone number strategically on sign posts along the said road. He last worked on 6th February 2014 at Duka Moja before he was arrested.

74. On 13th February 2014 he was at Nakuru Main Prison. He was arrested on the night of 6th and 7th February 2014 at Narok where he had travelled to attend to a customer’s motor vehicle at Duka Moja. He had arrived at Duka Moja at 11 am where he repaired a motor vehicle until 4pm. He and the motor vehicle owner drove the motor vehicle to Narok and bought spares and he completed repairing the motor vehicle at a place called Majengo. He was paid and the customer proceeded with his journey at around 8pm. The owner of the motor vehicle retained the receipts for the spares.

75.  He said that he had used public means of transport from Naivasha to Duka Moja but was not issued with a receipt. On the night of 6th February 2014 he booked himself into a lodging in Narok town for Kshs 200 for which he was not issued with a receipt and slept. On 7th February 2014 at 3am he was called by a customer who told him his motor vehicle had developed a mechanical problem at Haas Petrol Station and he required his services. The 2nd accused left on foot for Haas Petrol Station, about one hundred metres from the lodging where he had slept. He arrived at Mummies Hotel at 3:20am and saw two motor vehicles about five metres away with the bonnets open.

76. He took his mobile phone to make a call when he heard a voice say, “Kila mtu alale chini”. He lay on the ground as did several other people. He was arrested and a search conducted on his person. He had in his pocket a wallet, and two mobile phones, a Samsung and a Vodafone which were taken away by the police. The wallet had his Identity Card and cash.

77. He was not told the reason of his arrest. He was put in a police motor vehicle, a land cruiser, and taken to Narok Police Station. There were other people in the police motor vehicle that he did not know. It was dark and he did not see their faces. He was later charged with the offence before court. He denied ever having been to Nakuru and stated that when he was arrested he was not repairing a motor vehicle at Mummies Hotel. He testified that he does not know his co-accused persons and that he first met them at the DCI office at Narok. He added that he had been to Nairobi to repair motor vehicles. He testified that his mobile phone was not among those produced in court. He testified further that when he was arrested he was wearing a blue jeans pair of trousers, a jumper, a grey white stripped T-shirt and safari boots. The said clothes were not produced in court.

78.  Under cross-examination by Ms Serling for the state, the witness testified that he did not have any document to show that he was a mechanic. He testified further that the he did not have the telephone number of the customer who called him. He added that the customer who had called him was called John but did not know where to find him since he was just a customer. He did not have a receipt for the matatu fare or the lodging. He was arrested at 3am at Haas Petrol Station next to Mummies Hotel. He saw his co-accused persons the following day. He did not have witnesses to confirm he repaired motor vehicles.

79.  To dispose of this appeal, the parties were directed to file written submissions which they have complied.

1ST APPELLANT’S SUBMISSIONS

80. The 1st Appellant submitted that the police failed in procedure and law while conducting investigations. In terms of procedure the police flouted the following; failed to do a dusting on the alleged recovered motor vehicle at the scene of crime and at the police station so as to confirm to the court that the appellant was an occupant in the alleged vehicle, failed to do dusting on the alleged jacket at the alleged scene where the deceased body was found to substantiate that the same was in contact with the appellant, failed to cordon the scene of recovery of the body and the alleged motor vehicle for a proper and forensic examination instead went ahead to mismanage the same and drove the alleged recovered vehicle to the police station, failed to prepare a proper inventory of all the items recovered from the appellant and the alleged motor vehicle at the scene of alleged recovery of the motor vehicle and lastly failed to give an account of the alleged scene of recovery of the motor vehicle e.g. the lighting conditions, reports on the operation of the petrol station, whether operational or not, attendants, other vehicles present or not, distinction of the robbers from the riders, among others.

81. The 1st appellant submitted that these and other aspects in the prosecution case painted the true picture of shoddy investigations by the police and deficiency of the requisite ingredients that can substantively proof the charges preferred against the appellant. Such failure by the police left much unearthed hence a blatant move by the prosecution to conceal evidence that was adversarial to their case in total prejudice of the appellant.

82. The 1st appellant submitted that although Section 143 of the Evidence Act provides that no particular number of witnesses shall in the absence of any provisions of law to the contrary be required to proof of any fact, this does not relieve the prosecution of the responsibility to call critical witnesses to testify in court. If such evidence was adduced, it could have been adversarial to the prosecution case. The 1st appellant placed reliance on the case of Bukenya & Another v Uganda (1972) EA 549 where the court held that:

“the prosecution is duty bound to make available all witnesses necessary to establish the truth, even if evidence may be inconsistent to its case. Otherwise failure to do so may in an appropriate case lead to an inference that the evidence of uncalled witness would have tendered to be adverse to the prosecution case.”

83. The appellant submitted that the prosecution blatantly failed to call crucial prosecution witnesses who  included  the arresting officers, one of the motorcyclist who were placed by the prosecution as helping the appellant to repair the vehicle, the petrol station attendants or watchman to confirm whether there were other vehicles as rightly placed by the appellant or whether indeed the vehicle was recovered at that place and the appellant were the occupants, and finally the member of public who reported the presence of the dead body to PW7. This was a crucial witness as he could have corroborated the evidence of PW7 and could shed more light on the condition of the body and the scene of crime. The appellant submitted that failure by the prosecution to call these critical witnesses was for the sole reason that their evidences if adduced would have been adversarial to the prosecution case. This therefore occasioned great prejudice to the appellant.

84. The appellant submitted that the nature of arrest of an accused person is an important aspect in every case. It speaks volumes on the innocence or guilt of an accused person hence it should be free from errors. The appellant submitted that he was arrested during night hours, at HAAS Petrol station. PW9 who places himself as the arresting officer indicated that it was dark and there were other people namely motorcyclists who assisted the appellant in repairing the vehicle.

85.  A number of questions arise from the excerpt of PW9; How did the police identify the appellant? how did the police pick out the appellant from the rest of the assembled group?

86.  The 1st appellant submitted that PW9 failed to give details about the prevailing conditions at the scene of crime. He does not indicate the lighting conditions, his proximity from the car, he does not account on the rest of the people. He does not give details of what the accused was doing. He does not give details on the time he spent while observing the appellant action at the scene. He did not state whether they ambushed the appellant or they just landed at the scene and the appellant just saw them and failed to free yet he was guilty as alleged. Identification in this case was an integral aspect as it was the one that would associate the appellant with the offence and that would involve picking out the appellant from the rest of the group which surrounded the alleged motor vehicle.

87. The appellant placed reliance in the case law of Kariuki Njiru & 7 Others vs Republic where the court held that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The appellant submitted that parameters set out in this profound decision were not satisfied to any degree.

88. The 1st appellant submitted further that the evidence tendered by the prosecution witness on identification was insufficient and incredible and could not warrant a safe conviction as it did not meet the threshold under Section 165 of the Evidence Act. The trial court acted ultra vires by admitting this questionable evidence hence rendering a miscarriage of justice to the appellant.

89.  He submitted that the foundation of this case as adopted by the trial court was on the doctrine of recent possession. The court in arriving at its verdict relied on circumstantial evidence. The court should treat circumstantial evidence with a peculate sense of caution.

90. The 1st appellant submitted that the circumstantial evidence relied on by the prosecution and adopted by the trial court failed to meet the three tests that were laid down in the case of Erick Odhiambo Okumu v Republic [2015] eKLR hence leading to a miscarriage of justice. The threshold for the doctrine of recent possession were also not met. The prosecution was duty bound to proof beyond any reasonable doubt that the car was in possession of the appellant at the time of recovery by clearly demonstrating that he was found in the vehicle and that he was an occupant of the said motor vehicle. The prosecution failed to tell the court how they isolated the appellant from the rest of the people who were assisting in repairing the said motor vehicle.

91. On the issue whether the appellant was an occupant of the alleged motor vehicle, he submitted that this could have been established with ease if the car was subjected to fingerprint dusting. However, the police being conversant with the rules relating to scene of crime intentionally failed to dust the motor vehicle, failed to cordon the scene of crime and proceeded to tow the motor vehicle to the police station. This was a move to conceal crucial evidence that could have led to great revelations on who could have been responsible to the crime.

92. The prosecution in an attempt to associate the 1st appellant to the vehicle conducted a DNA exercise which report however was tabled in court by a government analyst and it disassociated the 1st appellant completely. The prosecution thus failed to prove that the 1st appellant was in contact and thus in possession of the alleged vehicle hence the trial court’s finding that the doctrine of recent   possession was proved was erroneous.

93. The appellant relied on the case of R V Kipkering Arap Koskei & Another [1949]16 EACA 135 and submitted that the prosecution failed to prove its case beyond reasonable doubt. None of the prosecution witnesses pointed that he was in possession of the said vehicle and neither did the forensic examination associate him with the same.

94. He submitted that his defence was never rebutted by the prosecution. He had testified that he had been called to HAAS petrol station to repair a broken down car and that there were two cars at the petrol station and he was in the process of calling his client to confirm which car he was to repair when he was arrested. The 1st appellant submitted that these and other elements casted a considerable doubt to the prosecution case, hence the prosecution was duty bound to rebut or rather displace the same by invoking the provisions of Section 309 of the Criminal Procedure but the prosecution never did.  That his defence was meritorious and required adequate consideration for if so considered it would have led to his acquittal.

2ND APPELLANT’S SUBMISSIONS

95. The 2nd appellant placed reliance on the case of Gilbert Cholmondeley v R CA where it was stated that any prosecution whose main purpose is to get a conviction misses the point. The robbery is alleged to have been committed at night where there was no eye witness identification and nothing was recovered from the 2nd appellant save for allegation that he was found near the alleged stolen motor vehicle. He relied on the case of James Tinega Omwenga v R [2014] eKLR and submitted that he was arrested purely on suspicion which in itself cannot sustain a conviction.

96. He submitted that the trial court greatly misapplied the law, the law on recent possession was improperly addressed and that the confession was erroneously admitted. The trial court also failed to evaluate the evidence on record which showed explicit contradictions which ought to have been resolved by awarding him a well -deserved benefit of doubt.

97. The 2nd appellant submitted that pw7 had testified that there were foot marks at the scene where the body was found but the police failed to microscopically examine the footmarks and compare it with the shoes that were being worn by the accused person. The police casually omitted this line of investigation hence giving the accused person a benefit of doubt. Further the 2nd appellant submitted that the learned trial magistrate analysed the testimony of the prosecution witness in isolation and arrived at a conclusion without considering the evidence of the appellant.

98. The 2nd appellant submitted that PW 11 confirmed that after dusting the motor vehicle the results were negative. It is very strange that 5 people who are alleged to have strangled a driver inside a motor vehicle left no prints or impressions on the said motor vehicle. The government analyst who had received blood samples belonging to the appellant and the deceased for comparison also made a report which exonerated the appellant. Due to the foregoing reasons the 2nd appellant urged the court to find that the case against him was not proved beyond reasonable doubt and it was erroneous for the trial court to find PW9 a credible witness yet he gave a very incoherent version of events. He said that this was a case of mistaken identity based on mere suspicion which has no room in the eyes of the law.

99. The 2nd appellant submitted that the prosecution failed to call essential witness to corroborate the evidence that was availed in court. Placing reliance on the case of Juma Ngondia v Rep (1982-1988) KAR 454 the appellant submitted that the only reason why the prosecution failed to avail the essential witnesses was primarily because the evidence would have been adverse to the prosecution.

100. He further submitted that the statement made at the police station during   the interrogation amounts to a tainted confession as it does not meet the threshold laid down under Section 25 A of the Evidence Act. The trial magistrate erred in entertaining that piece of evidence to be adduced during the trial since it was an extra judicial statement and which to all extents is exculpatory by any legal standards. The prosecution had a duty to rebut the appellant’s defence but failed to do so thus weakening the prosecution case. The court felt it safe to convict the appellant merely on strong suspicion. The appellant submitted that suspicion however strong cannot lead to a conviction as was held in the case of John Mutua Munyoki v Republic.

101. The 2nd appellant submitted that the trial magistrate erred in law by allowing written submissions to be filed without the consent of the appellant. He placed reliance on the case of Akhuya v Republic [2003] eKLR Appeal No. 42 of 2002. Therefore, failure to observe the requirements of Section 213 and Section 310 of the Criminal Procedure Code rendered the outcome null and void. This is to say that the recorded evidence does not show that the appellant was involved in the whole part of proceedings. This is contrary to the provisions of Section 77 (2) of the old Constitution and Article 50 (2) (f) of the Constitution 2010. The 2nd appellant urged this court to find that the adoption of the final submission by the trial court was both unprocedural and unacceptable in the instant matter and that this court should hold the entire trial null and void and acquit the appellant.

102.  He submitted that the prosecution never ascertained where and how the appellant was or could have said to be in actual possession of the motor vehicle in question. Other than mere assertions, there was no concrete evidence to prove the assertions and therefore the same must be treated as such. This being a serious offence it demanded an equally serious and or heavy proof as was held in Charles Kibara Muraya v Rep CR. App No. 33 of 2001.

103. The 2nd appellant submitted that the prosecution failed in its attempt to prove its case and therefore urged this court to find that the degree of proof in this case was far too below the required standard of proof and urged this court to hold as such and acquit the appellant.

RESPONDENT’S SUBMISSIONS

104. The respondent submitted that the case against the appellant was wholly reliant on circumstantial evidence. The respondent placed reliance in the celebrated case of Rex v Kipkering Arap Koskei & 2 others [1949] EACA 135 and the case of Omar Mzungu Chimera V R Criminal Appeal No. 56 of 1998and contended that the 3 tests encapsulated in the said cases were satisfactorily met. There is no other plausible explanation as to how the appellant came in possession of the subject motor vehicle herein.

105. The respondent submitted that the prosecution witnesses were consistent and the evidence presented was not contradicted in any manner whatsoever. The chain of events as presented left no other possible conclusion other than the fact that the appellant and his co-accused were the last to be seen with the deceased complainant.

106. For instance, the complainant was said to have died from strangulation and in line with this evidence as presented by the pathologist, the prosecution further presented a rope as evidence found in the subject motor vehicle in possession of the appellant. The respondent submitted that the trial court considered the defence evidence and rightly concluded that it was not plausible. The same was a mere fabrication that failed to water down and /or weaken the prosecution evidence.

107. The respondent submitted that all the elements that constitute the offence of robbery with violence were proved beyond reasonable doubt during trial and as such the conviction was safe and this court should so find. The 25 years’ sentence meted out was not excessive and /or harsh. The respondent therefore urged the court to find no merit in the appellant’s appeal and dismiss it in its entirety and uphold the trial court’s judgement and sentence.

ANALYSIS AND DETERMINATION

108. The Appellants being dissatisfied with the conviction and sentence meted out on them filed Petitions of Appeal separately setting out almost or similar grounds of appeal as hereunder;

(a) THAT the learned trial magistrate erred in points of law and fact by failing to appreciate that the prosecution evidence presented in court hailed from a shoddy investigation conducted by the police who did not put their mind into the nitty gritty aspects of investigations contrary to the provisions of Section 24(e) and 51 of the National Police Service Act CAP 84 Laws of Kenya hence rendering a prejudice.

(b) THAT the learned trial magistrate erred in points of law and fact by failing to appreciate the critical witnesses and consequentially failed to invoke the provisions of Section 150 of the Criminal Procedure Code.

(c) THAT the learned trial magistrate erred in points of law and fact by relying on inconsistent pieces of evidence on arrest yet failed to observe that the circumstances surrounding the arrest and at the locus quo were not explained as to the ease of ironing out the rest of the people who assisted in repairing the car.

(d) THAT the learned trial magistrate erred in points of law and fact in basing the conviction on inconsistent and incredible evidence of possession of an alleged motor vehicle without observing that the alleged recovery was tainted with doubt and no substantial nexus was created between the appellant and the alleged Motor Vehicle.

(e) THAT the learned trial magistrate erred in points of law and fact by failing to appreciate that the evidence adduced as a whole by the prosecution did not entirely discharge the prosecution burden of proving its case beyond reasonable doubt as provided by law.

(f) THAT the learned trial magistrate erred in points of law and fact by failing to consider the appellants’ plausible defence without appreciating that the same was not rebutted by the prosecution pursuant to the provisions of Section 309 of the Criminal Procedure Code.

(g) THAT the learned trial magistrate erred in both law and fact by failing to find that the identification of the 2nd appellant by prosecution witnesses was riddled with inconsistencies and unsafe as a base for conviction.

(h) THAT the learned trial magistrate erred in both law in relying on written submissions contrary to section 213 of the Criminal Procedure Code

(i) THAT the learned trial magistrate erred in both law by allowing the prosecution adduce confessionary evidence contrary to the provisions under Section 25A of the Evidence Act.

109.  In determining this appeal, this court being a first appellate court is  alive to and takes into account the principles laid down in the case of  Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence.  The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570.  It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions.  Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post 1978) E.A. 424. ”

ISSUES FOR DETERMINATION

110.  I have carefully considered grounds in the petition of appeal, the evidence tendered before the trial Court, the findings and decision by the trial Magistrate and the submissions by both parties. Despite the fact that a life was lost in the process, the accused persons were only charged with robbery with violence therefore, what needs to be proved is robbery with violence not murder.

111.  It is apparent that there was no direct evidence on who the perpetrators of that crime were and therefore the trial court relied entirely on circumstantial evidence to zero in on the appellants.

112.  The following issues falls for determination;

(a) Whether the ingredients of robbery with violence were established.

(b) Whether circumstantial evidence that was advanced by the prosecution can safely secure a conviction.

(a) Whether the ingredients of robbery with violence were established.

113.  To sustain a conviction on a charge of robbery with violence under Section 296 (2) of the Penal Code the prosecution is required to prove beyond reasonable doubt the ingredients of the offence of robbery with violence. The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of OLUOCH –VS – REPUBLIC [1985] KLR where it was held:

“Robbery with violence is committed in any of the following circumstances:

The offender is armed with any dangerous and offensive weapon or instrument; or

The offender is in company with one or more person or persons; or

At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………” [our own emphasis].

114.  The use of the word OR in this definition means that proof of any one of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code.

115.  In Dima Denge Dima & Others vs. Republic Criminal Appeal No. 300 of 2007 it was stated thus:

“the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively.  One element is sufficient to found an offence of robbery with violence.”

116.  In Criminal Appeal No 116 of 1995 Johana Ndungu vs Republic [1996] eKLR, the Court of Appeal had this to say about the elements of the offence of Robbery with Violence:

“The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:

1. If the offender is armed with any dangerous or offensive weapon or instrument, or

2. If he is in company with one or more other person or persons, or

3. If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.

Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.

In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.

With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”

117.  PW6 stated that during interrogation the suspects opened up and stated how they had hired the motor vehicle KBK 710Y from Nakuru and on the way they robbed the driver of the motor vehicle and murdered him. The suspects were in a group of five. PW9 also testified that when he arrived at the scene he saw three men surrounding the motor vehicle. The fact that the other 2 accused persons were acquitted does not change this fact.

118.  There is also no doubt that the deceased was violently robbed as he was killed and his body dumped by his assailants and that among the properties stolen were the motor vehicle that was driven by the deceased, cell-phone and driving licence. A rope and two pieces of belt were recovered from the motor vehicle. Pw4 also testified that she saw a metal bar in the motor vehicle. These were evidently the weapons that were used to kill the deceased person since PW8 confirmed that the deceased had signs of strangulation and severe head injury following blunt force trauma to the head.

119.  The prosecution therefore proved all the ingredients of robbery with violence and it was safe for the trial court to conclude as such.

(b) Whether circumstantial evidence that was advanced by the prosecution can safely secure a conviction.

120.  Circumstantial evidence is not inferior evidence.  Many a time it is the best evidence because those who commit crimes do not intend to make them obvious to eyewitnesses.

121.  The courts in Kenya have laid out clear principles on the threshold for a safe conviction on such evidence. The court of appeal in Mwita v. Republic [2004] 2 KLR 60 at p. 66, stated thus:

“It is trite that (sic) in a case depending exclusively upon circumstantial evidence the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than the guilt”.  See Simoni Musoke v. R [1958] EA 715 where the following extract from Teper v. R [1952] AC 480, was quoted: -

‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”’

122.  The appellants were found with the stolen motor vehicle, no sooner had the deceased been attacked, robbed, killed and his body dumped. Its noted that the evidence before this court clearly indicates that there was no eye witness to the offence, hence the prosecution relied on circumstantial evidence to connect the appellant to the robbery with violence offence. Therefore, the issue of identification does not suffice for determination in this instance.  The trial magistrate based his conviction on the circumstantial evidence and the doctrine of recent possession.

123.  The Court of Appeal in Mamush Hibro Faja v Republic [2019] eKLRcited the case ofRepublic vs. Taylor Weavor and Donovan [1928] 21 Cr. App. R.20where the court held as follows: -

“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial.”

124.  The same court went to state that as follows: -

“The principles governing reliance on circumstantial evidence to convict an accused person are well settled. There are several authorities on this subject. This court in Criminal Appeal No. 30 of 2013, Musili Tulo vs. Republic [2014] eKLR laid down the requisite criteria as follows:

“It follows that the evidence linking the appellant to that offence is circumstantial. We must therefore closely examine the evidence on record, not only as our normal duty as the first appellate court to arrive at our own conclusions, but also to ascertain whether the recorded evidence satisfies the following requirements: -

i. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

ii. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

iii. The circumstances 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.

125.  Further, InRepublic vs. Kipkering Arap Koske & Another, 16 EACA 135the  court held as follows:

“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden which never shifts to the party accused.”

126. In the instant case, the appellants were found together with the 1st and 3rd accused persons in recent possession of the motor vehicle belonging PW1 who had employed the deceased as driver of the said motor vehicle. The said circumstances suggested that they were escaping from Nakuru (the scene of crime) towards Nairobi through Narok. The 1st appellant in his defence testified that he was arrested while waiting to repair a client’s motor vehicle at Haas Petrol Station. He testified that prior to incident he travelled to Duka Moja through public means to fix another client’s motor vehicle and had even spent the night in Narok in a lodging after repairing the said motor vehicle.

127. The 1st appellant however failed to produce or call any evidence on the same in support of his defence during the lower court trial and has also not produced any in his appeal. In view of the forgoing, the court holds that he   was placed on the scene of crime and he did not provide any alibi or call any witness on his defence. I further note that the trial magistrate considered the appellant’s defence while making his decision and the same is evident on the last paragraph of page 34 of the judgement.

128. He placed reliance in the case of Bukenya & Another V. Uganda (1972) E A 549 on the issue of failing to call key witnesses. This does not aid him as the witnesses whom they alleged were left out in would not have altered the circumstances of the case. The witnesses called already had proved how the robbery took place, the injuries sustained by the complainant leading to his death, the prove of ownership of the motor vehicle among others.

129. The 2nd appellant testified that on 13th February 2014 he was coming from Homa Bay his ancestral home to visit a sick aunt and he boarded Transline Bus. He went on to testify that the bus stopped at Rock Lands Restaurant in Narok and he was arrested while heading back to the bus from the restaurant. That there was a commotion about fifty meters from the bus and he walked towards the place and he the saw police officers who arrested him despite showing them his bus ticket which they took and never returned it to him.  That he did not understand what caused the commotion and that many people were arrested and taken to Narok police station in a land cruiser.

130. He however failed to produce or call any evidence on the same in support of his defence during the lower court trail and has also not produced any in his appeal. In view of the forgoing, this court holds that the appellant was placed on the scene of crime and he did not provide any alibi or call any witness on his defence. The trial court in any event took into consideration his evidence as is evident in its judgement.

131. He relied on the case of Benjamin Mugo Mwangi & Another vs Republic [1984] eKLR and Gabriel Kimuhu Kariuki v Republic [2003] eKLR, on the issue of failing to call essential witnesses. This in my view does not aid him as the witnesses whom he alleges were left out would not have altered the circumstances of the case. The witnesses called already had proved how the robbery took place, the injuries sustained by the complainant leading to his death, the  prove of ownership of the motor vehicle among others.

132. The sum total of this consolidated appeal is that the same is unmeritorious and it is hereby dismissed. Let the two appellants Robert Kambuti Mburu and Adrian Odhiambo Olando serve the period imposed by the trial court.

DATED SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF FEBRUARY 2022.

H K CHEMITEI.

JUDGE.