Samuel Ndirangu Muchiri & Joseph Maina Kirika v Republic [2014] KEHC 7324 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 215 OF 2012 CONSOLIDATED WITH CRIMINAL APPEAL NO. 216 OF 2012

SAMUEL NDIRANGU MUCHIRI………………...…………..1st APPELLANT

JOSEPH MAINA KIRIKA ………………………………….2ND APPELLANT

-VRS-

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

(From the original conviction and sentence in Criminal Case NO. 1085 of 2010 by Senior Resident Magistrate’s  Court at Baricho –Hon. J.N. Mwaniki(SRM)

JUDGMENT

Both appellants  JOSEPH MAINA KIRIKA AND SAMUEL NDIRANGU MUCHIRI were tried and convicted  in three counts with  offences of church breaking and stealing  contrary to Section 306(a)  of the Penal Code .

The first appellant  was also convicted in a fourth count with the  offence of theft of motor vehicle parts contrary to Section  297(g)of the Penal Code.

In count 1, count 2 and count 3, the appellant had been charged  jointly with MARY ANN WAMBUI who was at the end of the trial acquitted  in each of the counts for lack of sufficient evidence.

Following the convictions each of the appellants was sentenced to serve seven years imprisonment  in counts one, two and three  while the first appellant was sentenced to the same term of  imprisonment in count four.

The sentence  were ordered to run concurrently.

Being dissatisfied  with the trial court’s  judgment , the 1st and 2nd  appellants filed their appeals separately  challenging  their conviction  and sentence  but when  the appeals came up for hearing they were consolidated and hear together .

In their respective appeals , the appellants put forth several  grounds of appeal raising  complaints which were to a large extent similar.    The same can be amalgamated  and compressed to the following grounds.

That the trial magistrate erred in law by convicting  the appellants  on the basis of insufficient evidence.

The learned trial magistrate erred in law and fact by failing to find that the 1st appellants constitutional  rights  were grossly  violated  as he had been kept  in police custody  from 25th December to 30th December 2010  a period of  over 24 hours contrary to constitutional provisions.

That the learned trial magistrate erred in law and in fact by  failing  to consider the appellant’s defence and mitigation.

Briefly , the case for  the prosecution according  to the  evidence of  PW1  SAMSON MUSYOKA SAMUEL   a preacher with Salvation Army Church Kangaru is that on 29th December, 2010 he went to the church  at about 6 a.m. and  discovered that  it had been broken into and a computer set, 34 plastic chairs  and  a maroon table cloth stolen.  On the same day, he received some information  that some chairs  were  on sale at Rukanga area.  He proceeded there and witnessed the recovery of a computer screen (monitor) , a car battery, micro phones , mater keys , farm tools, chemicals  and some seats  bearing the names  of Full Gospel Church  from the 1st appellants house.

From the 2nd appellant’s house, a computer CPU, a wall clock and twenty plastic chairs were also recovered.

According to the evidence  of PW2 BENSON MUGWERU , on 28th December 2010 , he received information that the Full Gospell Church at Kinyaga  had been broken into and on proceeding there, he confirmed  that information and  in addition noted that sixteen 916) plastic chairs , one table , one floor mat and two  microphones  had been stolen.  He then  went to Sagana police station to report the matter  and this is when he was shown some  property which had already been recovered.

Among the properties he was shown, he was able to identity eight plastic chairs, one table and one mat as some of the items which  had been stolen from  his church.  The eight chairs bore the church’s initials of K.F.G.C.K. He did not know how the items  had been recovered.

PW3 JOSEPH WAWERU WANJOHI a preacher at Kenya God in Miracle Spirit Church also testified that on 29th December 2010  in the morning  , he went to the church and found that the church  had been broken into and some property stolen.  He recalled  noting that 35 plastic chairs , a  wall clock, extension cables , decoration tables , flowers  and a speaker  had been stolen.   He reported the matter to the police .

A few days later, he was called to Sagana  police station where he identified thirty five  plastic chairs and a wall clock as part of the property  which had been stolen from  the church  on 29th December, 2010 .  He was able to identify the chairs since  they bore the church’s initials of K.G.M .S  which stood for Kenya God Miracle in Spirit .  He did not also know how the items  had been  recovered.

The person who explained to the court how the properties  identified  by PW1, PW2 and PW3 were recovered  was PW4 P.C. PHILIP KIGEN who was the investigating officer in this case.

He testified  that after  receiving  complaints that the three churches  had been broken into and several items  stolen and that   six  batteries  had been stolen from lories  belonging  to REUBEN ABERDARE CONSTRUCTION COMPANY , he received  information on 29th December,2010  that there  were some people selling plastic chairs bearing some initials  at Githogondo village.

Following a tip off, he visited 1st accused’s home  but when he saw  them approaching, 1st  accused ran away.  He found his wife  who opened  their house for  him.  In that house, PW4 recalled  that they recovered one computer monitor(PH 700), sixteen plastic  chairs of different colours and  a lorry battery  hidden under a bed.   They also recovered two microphones hanged  on the wall together  with an extension cable, four bulbs  and a bunch of master keys . They then went to the  2nd appellants home which he allegedly shared  with his wife  who was the 3rd accused  in the lower court .

PW4 recalled that on seeing them, the two fled  but 3rd accused went  back and  in their rented house they recovered one computer CPU , 20 plastic chairs, one wall clock hanging on the wall  together with some  decorations.  They also recovered  one table, a floor mat and some extension cables .

In her evidence, PW5 MARGARET MUTHONI testified  that on            29th December 2010 at around 6 a.m., the  2nd appellant called her and informed her that he had plastic chairs for sale.  She went to his house and saw the chairs  being offered  for sale each  for kshs 200.  She noted that one chair had initials  of K.F.G.C.K and another  initials of K.G.M.S.  The chairs  were  being kept  in the 2nd appellant’s  aunt’s house where he allegedly resided.

On the same day, the 2nd appellant also sold a total  of 7 plastic chairs to PW7 ROSEMARY WAMBUI.When police recovered the chairs from her home later that day, on close scrutiny  she found that the chairs had initials  of K.G.M.S written in small letters.

PW6 also recalled in his evidence that on 29th December,2010 at        9 a.m., he met  with the  1st appellant a person he knew previously for about 2 years ferrying some plastic chairs  on a motor cycle .  The 1st appellant sold to him one light blue chair at a cost of kshs 300/- explaining  that he had been  given the chairs  to sell  by an auctioneer.  On inspecting  the chair later, he found that it had initials  of K.G.M.S

Pw 8 DAVID WAMBUGU  testified as the last prosecution witness.  He recalled that on 4th December 2010, he  parked lorry registration number KBM 036Z at a parking lot at  Rukanga.

On 5th December, 2010 he found the lorry’s two batteries missing .  He noted that four other batteries  were also missing  from other two lorries  parked nearby.  He reported the matter to his employer  and to the police and on 29th December 2010, he  was summoned to Sagana police station where he saw and identified  one battery to be one of the  two batteries stolen  from the lorry in which he was working as a driver.

The appellants  were later arrested at different times and were charged  with the offences  in respect of  which they were convicted.

In their defence, the 1st appellant chose to give a sworn statement while the 2nd appellant gave an unsworn statement.  Both did not call witnesses.

In his sworn statement, the 1st appellant denied  having committed the offences  claiming that he was arrested  on 25th December, 2010 and charged   and convicted  with the traffic offence  of riding a motor cycle  without a licence.  He was thereafter  charged  with the offences for which he was convicted which he knew nothing about.

On his part, the 2nd appellant  also denied having committed the offences saying that he was arrested on 7th January, 2011 when a person selling  to him tomatoes branded him  a thief.  And he  was subsequently  charged with the offences in question.

It is   important to note that  both appellants  did not talk about the properties  displayed  in court which  were allegedly recovered from their respective  houses and which were identified by prosecution witnesses as some of the items stolen from some three churches who were the complainants  in this case.

This being the first appellate court, it is enjoined to re-evaluate and reconsider  the evidence to draw its own conclusions  whether the convictions and sentence of the appellants  were sound in law  while  of course taking into account that it did not see or hear the witnesses:-see

SIMIYU VS REPUBLIC (2005) I KLR 192

KIILU & ANOTHER  VS REPUBLIC (2005) I KLR 174

After re-examining  the evidence  a fresh  and considering the submissions made by the appellants and M/S Macharia for the state,  I agree with the submission  made by  the 2nd appellant  that the prosecution  in this case relied  primarily on circumstantial  evidence as none of the witnesses  claimed to have seen the appellant’s committing any of the offences   preferred  against them .

I  however  find that the  prosecution adduced sufficient evidence to prove that between the 18th December and the night of 28th and 29th December 2010, three churches  were broken into at kangaroo, Kinyaga village and at Kagio Township and several properties  which included branded plastic chairs, a computer  set and wall  clock among others were stolen.

Though there is no evidence to prove to any degree  of certainty that the houses  in which those items were recovered  belonged to  the appellants, there is unchallenged evidence from PW5 and PW7  that the 2nd appellant sold to them two and seven plastic chairs  respectively on 29th December 2010.  The chairs sold to PW5  bore the initials K.F.G.C.K which were abbreviations for the Kenya Full Gospel Churches of Kenya while  those sold to PW7 had initials of G.G.M.S  abbreviations  for  Kenya Gods Miracle Spirit Church.

There is undisputed evidence that the  seven chairs  with initials G.G.M.S chairs  had been stolen from the said church on the night of 18th and 19th December 2010 about ten days  earlier  while those sold to PW5  bearing initials  K.F.G.C.K had been stolen a few hours earlier.

As PW5’s  and PW7’s evidence was not challenged by the appellants  even in cross examination , it means that it had been established as a fact  that the 2nd appellant had sold to them the plastic chairs they described in their evidence  on the date alleged.

Consequently, I find that the Learned trial magistrate correctly made a finding that the appellants  had been found in possession  of recently stolen goods which invited the application of the doctrine of recent possession.

The doctrine  of recent possession raises a rebuttable presumption  that a person found in possession of recently stolen goods  is presumed to be either the thief  or a handler  of the same knowing or having reason to believe that the property  was stolen unless  he can adduce evidence to the contrary by satisfactorily accounting for their possession.

In this case, the appellants  just denied  having committed  the offences but made  no attempt to explain how they had come  across  the stolen property especially the plastic chairs.  They therefore clearly failed  to rebut the presumption  in the doctrine  of recent possession.

In view of the foregoing, the learned  trial  magistrate  was  entitled to  conclude as he did that the appellants must have participated  in the theft  committed  in the three  churches and that this is how they came into possession  of the stolen plastic chairs  among other properties . Besides,  their conduct  of running  away  when the  first attempt  to arrest them  was made  by PW4 accompanied by PW1 and PW6 further confirms  guilty  knowledge  on their part. It showed that they had something to hide  and this was clearly  incompatible  with their innocence.

I am  therefore  satisfied that the trial magistrate properly evaluated the evidence on record  and arrived at the correct decision that the  prosecution had   proved the guilt of the two appellants beyond reasonable doubt.  It is hence my finding that the appellants were rightly  convicted  in count 1 , count 2 and count 3 respectively.

As for count 4, I am of the view  that the prosecution did not adduce sufficient  evidence  to warrant the conviction  of the 1st appellant  in that count.

I find that the evidence  of PW8 was wanting  with  regard to identification of the battery which was found in the 1st appellants house as the same battery stolen from lorry registration number KBM 036Z.  He did not point to any special feature or mark in the battery that enabled him to identify it as the battery which was allegedly  stolen from the afore said lorry.  Identifying it through its make  SHAN DOUG in  my view is  insufficient  since it  was not alleged nor proved that only lorries  belonging to REUBEN ABERDARE  CONSTRUCTION  used those kinds of batteries  and it is possible  that such batteries  could also  be found  in the open market.  And though the 1st appellant did not say anything in his defence regarding his alleged possession of the  battery  in question , he did not have any obligation to prove his innocence.  The onus was on the prosecution to prove all the charges against him beyond any reasonable doubt.

For the reasons  aforesaid ,  I find that count 4  was not proved against the 1st appellant beyond any reasonable doubt.  It is therefore my conclusion that the 1st appellant was wrongly convicted in count 4.

Lastly, the 1st appellant  had complained  that  his constitutional  rights had  been violated  by being detained in police custody  for over 24 hours .  His claim that he was arrested and held in police custody from 25th December 2010 to 30thDecember 2010 is not borne  out by the  court record.   The record   shows that he was arrested on 29th December 2010 and  was arraigned  in court  on 31st December 2010.  I  have checked  the calendar  for the year 2010 and has noted that 30th December 2010 fell on a working day  and therefore  in compliance with Article 49(1)(f) of Constitution,the appellant ought to have been produced in court on 30th December  2012 .

Article 49(1)(f) of the Constitutionrequires  that an arrested person be produced  in court  within 24 hours and if the 24 hours end outside the ordinary court hours then by the end of the next day.

From the foregoing, it is apparent  that the appellant was taken to court after expiry of 24 hours  when  the day after  his arrest fell on a normal  working day. It is  therefore possible  that his constitutional  rights  under Article 49(1) (f) may have been violated but this by itself does not mean that his trial was a nullity.

The Court of Appeal has now held that even where there is a violation of an accused person’s constitutional rights, the remedy available to such an accused person is not an acquittal but a claim for compensation in a civil suit –see

JULIUS KAMAU MBUGUA VS REPUBLIC CRIMINAL APPEAL NO. 50 OF 2008.

On sentence,  the 1st appellant told the court that he had learnt skills while in prison and that he was now a reformed man.  The 2nd appellant urged the court to allow the appeal against sentence and reduce the sentence imposed to the term already served.

The state opposed the appeal submitting that the appellants should be allowed to complete their sentences.

The record shows that the appellants were first offenders and that the property stolen was recovered and released to the complainants.

The learned trial magistrate does not seem to have considered these facts before passing sentence and had  he done so, It is possible that he may have  reached  a different  decision.

The offence  for which  the appellants  were convicted attracts a penalty of a maximum  of  seven years  imprisonment  and imposing  the maximum sentence on first offenders was rather  harsh and excessive.

I am therefore inclined to allow the appeal against sentence which I hereby do.  I set aside the sentence  imposed  in respect of count 1, count 2 and count 3  and substitute  it with a sentence of 3 years imprisonment   in each count  with effect  from the date  of conviction  namely   9th June, 2011.  The sentences  to run concurrently.   It is so ordered.

C.W. GITHUA

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 17TH DAY OF JANUARY 2014in the presence of:-

The 1st appellant

The 2nd appellant

Mr Sitati for state

Mbogo Court Clerk