Titus Otieno Owino v Republic [2014] KECA 52 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: ONYANGO OTIENO, AZANGALALA & M'INOTI, JJ.A)

CRIMINAL APPEAL NO. 290 OF 2010

BETWEEN

TITUS OTIENO OWINO……………………………..…… APPELLANT

AND

REPUBLIC ………………………………………………RESPONDENT

(An Appeal from a Judgment of the High Court of Kenya at Kisumu (Karanja & Aroni, JJ.)  dated 13th July, 2010

in

H.C.CR.A. 132 OF 2009)

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JUDGMENT OF THE COURT

This is a second appeal, the first appeal in the High Court vide Criminal Appeal Number 132 of 2009 having been dismissed. The record before us, the genesis of this appeal shows that the facts that gave rise to the entire saga are straight forward.The complainant John Onyango Onyango  (PW1) (Onyango)  and  Michael  Otieno Adhola  (PW2)  (Michael)were  both bicycle repairers and had  a  workshop  near Octopus Bar, on Mosque Road. They both lived at Otonglo market on the outskirts of Kisumu Town.  On 7th October, 2008, they worked till late.  At about 9. 00 pm, as Onyango was riding his bicycle on his way home, and just as he was about to reach home, he heard a bang on his head and he fell down. He had been hit on the head and he lost consciousness. When he came to about 20 minutes later, he found he had been injured on his head and mouth and his bicycle was gone.  Some good Samaritans helped him to Port Florence Hospital nearby where he was treated. He also realised that apart from his bicycle, his NOKIA mobile phone and his cash Ksh 2000 had also been stolen. He was admitted at the hospital for one week.  He did not identify his attacker(s)  at  the  time  of  the  attack. His wife got  the  information  about his predicament; went and saw him and thereafter went to the complainant's place of work and reported to Michael with whom he had been working that day and with whom they were together that evening till they parted as each was going to his home. On Michael receiving the information from the complainant's wife of the theft of Onyango's bicycle and other items, he passed the information to other colleagues of theirs.   On 8th October, 2008, one day later at about 10. 00 am, Michael saw the appellant riding Onyango's bicycle.  He recognised the bicycle  as  that  of the complainant as he had repaired it and Onyango had also used to carry him on the bicycle.  He therefore apprehended the appellant seeing him riding the bicycle.  He asked the appellant where he got the bicycle from and the appellant told him the owner was at Fanana Bar.  By that time more people had joined the two, so they asked him to take them to the "owner" at Fanana bar, but as they got to Fanana bar,the appellant  ran away  into  a Police  Post  nearby  which  was housed  in a container alleging  that Michael  and others  wanted  to kill him. The police advised Michael  to go and report the alleged  theft to Central  Police Station.  He complied and thereafter the appellant was moved from the Police Post to Central Police Station.  PC Fredrick Ojwaya (PW3) who was manning the Police Post, referred to by Michael as a container, confirmed having received the appellant from Michael  and his colleagues. He also received the subject bicycle and was taken to Port Florence Hospital where the complainant had been admitted.  He recorded  a statement from  the complainant and issued  him with a P3 form.   That form was presented  to Benard Omollo (PW4) (Benard) a Clinical  Officer at Kisumu Hospital by the complainant on 7th November, 2008.  After examining Onyango,  Benard formed  the opinion  that Onyango  had been seriously  injured as X ray examination revealed fracture on the left middle finger, and he was also cut on the head and had a cut on the left hand.   He classified the injuries as grievous harm.  He produced P3 form prepared by him as Exh.1.

The appellant was thereafter,  charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, the particulars of which were that:

"On the 7th day of October, 2008  at about  9. 30  pm  at  Kobil Otonglo in Kisumu East District within Nyanza Province, robbed John  Onyango Onyango of one  bicycle Hero Jet, Nokia mobile phone  make  1110 and  Kshs.2000/= all valued at Kshs.10,500/= and  at or immediately  before  or immediately  after  the  time of such  robbery -used actual  violence  to  the  said  John  Onyango Onyango."

He denied the offence but after hearing all the four prosecution's witnesses, the learned trial Magistrate found a prima facie case made out against him and put him to his defence.  His defence, given vide unsworn statement was:

"I come from Ugenya. I transport water in Kisumu.

On 8/9/08 I was on way to work and on reaching Octopus, I sat on some stones to wait for my handcart.  Then Michael Otieno Onyango whom I know came to me with others. He asked me if I could remember what I  had done.  I said  I  could remember keeping some speakers for him.   Then he told me to keep his speakers. From that day, Michael had not been happy with me because his speakers got lost.  He and others started beating me saying I had stolen a bicycle. I told them not to beat me but to take me to the Police Station.

They took me to the Police Station and said I had robbed John Onyango of a bicycle. I denied. I don't know John Onyango and I never robbed him that is all."

The above is the entire evidence that was before the trial court and upon which that court convicted the appellant and after considering mitigating factors, sentenced the appellant to death.  The learned Chief Magistrate, having analysed that evidence and having evaluated it stated:

"As stated earlier, the complainant and the other prosecution's witnesses were strangers to the accused and I did  not observe anything in their demeanour to suggest that they had any reason to give false testimony against the accused.  I am satisfied that they spoke the truth and I believe them. I cannot say the same of the accused whose defence I have considered,  found un-meritious and reject."

From the evidence  on   record  and   accused's   unexplained possession of the complainant's bicycle so soon after the robbery, I am  satisfied  that  he  must  be  the  person  who  attacked  the complainant on the night of 7. 10. 2008 injuring  him on the head and robbing him of the bicycle and other items as per the charge sheet.   The  prosecution having established its case against him beyond doubt, I find him  guilty of the offence  of  robbery with violence contrary to Section 296 (2) Penal Code and convict him accordingly."

As  we  have  stated,  he  appealed  against  that  conviction  and  sentence  vide Criminal Appeal No. 132 of 2009 at the High Court at Kisumu.  That court revisited the evidence set out hereabove afresh and having done so dismissed the appeal saying in doing so as follows:

"The appellant denied responsibility but not the fact that he was found in possession of the complainant's stolen bicycle one day after the offence.  He made no attempt to explain his possession of the bicycle. Instead, he took Martin (sic - should be Michael) (PW2) and his group on a "wild goose chase" in search of the alleged "owner" of the bicycle. He implied that he was fabricated by Martin (sic) (PW2) due to a disagreement on some speakers yet he betrayed his "innocence"  by running  away into the safe hands of the police when it emerged that there was no owner of the bicycle to be  found at Fanana Bar.  The conduct and recent possession of the complainant's stolen bicycle provided sufficient and  credible  circumstantial   evidence  to  connect  him  to  the offence beyond peradventure..........................................

In sum, this appeal has no merit and  is dismissed accordingly."

The above two concurrent findings by the trial court and the  High Court are what triggered  this appeal  based on three grounds in the Memorandum  of Appeal dated  and filed  on  7th May, 2014. These grounds,  which were  before  us argued together by Mr. Indimuli, the learned counsel for the appellant were:

"1. That the superior court erred in  law  in   failing to appreciate that the evidence on record was  riddled with material inconsistencies that rendered the verdict therein a nullity.

2.  The superior court erred in law in failing to analyse the evidence as a whole in arriving at its conclusions and findings.

3. The superior court shifted the burden of proof:"

In his submissions before us on the above three grounds, Mr. Indimuli, stated that as the entire conviction was based on the doctrine of recent possession in that the appellant was found in possession of the complainant's bicycle stolen only one day previously and as he did not explain that possession, he was the thief. However there was no proof of that as the court failed to consider that the main and only witness who gave evidence leading to that conviction was Michael who, according to the appellant, was nursing grudges against the appellant and thus, there was no nexus between the alleged bicycle and the appellant.

Mr. Abele, the learned Assistant Director of Public Prosecutions, on the other hand supported the conviction submitting that the two courts below accepted the facts which  clearly  demonstrated  that  the  appellant  was  found  in  possession  of  the complainant's bicycle which had been stolen from the complainant in the course of the robbery only one day back. He never gave any explanation for that possession and so he had no escape route.

As we said at the commencement of this Judgment, this is a second appeal. Our jurisdiction, according to the provisions of Section 361 (1)(a)  of the Criminal Procedure Code, is limited to matters of law only. We have no jurisdiction to consider matters of fact unless we are persuaded that the two courts below proceeded on misapprehension of facts and therefore their judgment result into a perversion of justice in which case we would still view it on the basis that it is a matter of law.

Again, as we have stated, the facts giving rise to the entire matter are straightforward.  Complainant is attacked at night- about 9. 30pm; his head was hit and he fell down unconscious for about 20 minutes.  He woke up to find his bicycle, his Ksh.2000/= and mobile phone all stolen.  He could not identify his attacker and was rushed to a hospital where he was admitted for one week.   His wife informed Michael the next day. Michael and complainant had been working together repairing bicycles.  Michael had repaired the stolen bicycle and had been given a ride on it, so he knew the bicycle only too well. At about 10. 00 am, on 8th October, 2008, he sees the appellant with the same bicycle. He apprehends him and asks him where he got the bicycle from.  The appellant offers to show the "owner" who was allegedly at Fanana bar, but as they were almost to reach the bar, the appellant ran to a Police Post. He did not, having gained his security, offer to take the police to the owner of the bicycle and did not give any other explanation of his possession of the subject bicycle. Instead, in court, he alleged that Michael had grudges with him over some speakers but throughout Michael's evidence the appellant never in his cross examination raised any issues of grudges arising from his failing to account for Michael's alleged speakers.

The  conviction  proceeded  on  the  application  of  the  doctrine  of  recent possession to the entire case and both courts found that the complainant was indeed attacked, injured and robbed of his bicycle, money and mobile phone.  The appellant was found in possession of the stolen bicycle the next day and he never offered any explanation for his possession of the same stolen property so soon after the theft.  In the circumstances the two courts below held him to be the thief. The principles which guide the courts when considering a case based on the doctrine of recent possession are now well settled.  In the case of Mwachanje & 2 Others vs Republic, (2002) 2 KLR 341, the High Court sitting in Mombasa held inter alia:

"2.      Where an accused is found in recent possession of goods  alleged to have been stolen, he is under  an obligation  to explain how he came into such possession and that  such possession  is innocent. Failure to do so leads to the inescapable conclusion that he is the thief or robber."

That was a decision of the High Court.  It is of persuasive authority, but if that is not enough, the decision of another High Court in the case of  Malingi  v  R. (1989) KLR  225 makes the legal position even clearer.   The court stated in that case as follows:

"By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained   about.     He  can   only  be  asked   to  explain   his possession after  the prosecution  has proved certain  basic facts; that  the item  he had  in his possession has  been stolen, it has been stolen  a short  period  prior  to their  possession;  that  the lapse of time from  the time of its loss to the time the accused was found with it was (from the nature  of the item and circumstances of the case) recent; that  there  are no co-existing circumstances which point to any other  person  as having  been in possession of the item."

And lastly, in the case of Hassan vs Republic (2005) 2 KLR 151 this Court stated that:

"Where an accused  person  is found  in possession of recently stolen property in the absence of any reasonable  explanation to account for this possession, a presumption of fact arises that  he is either the thief or receiver."

In this case, the trial court accepted the evidence of Onyango, the complainant, that his bicycle was stolen during the attack on him on the night of 7th October, 2008. He identified the bicycle by its cushion which he installed on it.  Other items - money and mobile phone were also stolen during the same attack.   The appellant did not dispute that.  First appellate court confirmed that fact.  It was also accepted that the next day, Michael  found  the  appellant  with  that  same  bicycle  and  the  two  courts accepted Michael's evidence on that aspect.  The appellant never claimed the bicycle and all he said was that Michael had grudges with him, but again that was not put to Michael when he gave evidence. Further, and we agree with the  High Court, the appellant's conduct of saying that the bicycle was owned by somebody while on being challenged  on that he bolted to a police post, where he never  offered to show  the police that alleged owner, all demonstrate his guilt.  In our view, on the evidence on record and on proper application of the doctrine of recent possession, the two courts below had no option but to find the appellant guilty.  We can see no basis for interference with the same conviction.   The sentence was lawful and was not challenged on appeal.

In short, this appeal lacks merit. It must fail. It is dismissed.

Dated and Delivered at Kisumu this 13th day of June, 2014.

J.W. ONYANGO OTIENO

…………………………

JUDGE OF APPEAL

F. AZANGALALA

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JUDGE OF APPEAL

K. M'INOTI

………………………

JUDGE OF APPEAL

I certify that this is a true copy

of the original.

DEPUTY REGISTRAR