[2022] KEHC 10588 (KLR)

Abdiweli Salah Mohamed v Republic (Criminal Appeal 22"B" of 2020) [2022] KEHC 10588 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10588 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Appeal 22"B" of 2020

A Ali-Aroni, J

June 10, 2022

Between

Abdiweli Salah Mohamed

Appellant

and

Republic

Respondent

(Being an Appeal against the conviction and sentence delivered by Hon. D.W. Mbuteti (RM) on 11th October 2019 in Criminal Case No. 189 of 2018)

Judgment

1. Abdiweli Salah Mohammed the appellant was the 1st accused in Chief Magistrate Court Criminal Case No 189 of 2019 with one other person not in this Appeal. They were charged with two counts as follows;Count I Engaging in Organised Crime activity contrary to Section 3 (c) as read with Section 4 (1) of Prevention of Organised Crime Act, 2010Particulars were that on the night of the 12th and 13th day of January 2018 at Garissa Sub County acting in concert with others, not before the court assaulted for purposes of obtaining money Kshs. 157,000 from Abdikadir Said Warsame.Count II Acquiring proceeds of crime contrary to Section 4 (a) as read with Section 16 (1) of the proceeds of crime and money laundering act. 2009Particulars were that on the 12th and 13th January 2018 at Industrial Area remand prison Nairobi, within Nairobi County acquired Kshs 157,000/= and at the time of the acquisition knew or reasonably ought to have known that it formed part of the proceeds of robbery with violence committed by others, not before the court.

2. The matter proceeded to full trial and the appellant convicted and sentenced on both counts, five (5) years imprisonment on Count I and three years’ imprisonment on Count II. The sentences were to run concurrently.

3. Aggrieved by the judgement of the trial court, the appellant preferred an Appeal to this Court on the following grounds; -.i.That the learned trial magistrate erred in both law and in fact by placing reliance on hearsay evidence and unfounded claims to base his conviction against the accused person thereby prejudicing him greatly.ii.That the learned trial magistrate erred both in law and in fact by failing to note that no tangible evidence whatsoever was placed before the court to show that he was in control of the alleged mobile phone gadget that is held to have committed the offence (s) in question.iii.That the learned trial magistrate erred both in law and in fact by failing to find that a critical witness who needed to substantiate the prosecution’s case was not availed therefore lingering doubts were left on the mode of the arrest of the accused person.iv.That the learned trial magistrate erred both in law and in fact by failing to find that the whole prosecution’s case was full of material contradictions and inconsistencies which went to the root of the charges facing him.v.That the learned trial magistrate erred in both law and in fact by failing to give regard to the accused person’s defence, which reasonably exonerated him from any wrongful doing.vi.That the learned trial magistrate erred in fact and in law by failing to consider that both of these offences were charges from the same transaction and therefore the sentences would have to run concurrently as laid down in the sentencing Policy Guidelines.vii.That the trial magistrate erred in law and facts by failing to all consider mitigating factors including that a first offender while handing him an excessive sentence disregarding the Sentencing Policy Guidelines 2015.

4. The appeal was canvassed by way of written submissions as follows;

Appellant’s Submissions 5The appellant submitted that he is a prisoner serving a lawful sentence. And at the time of his arrest and subsequent imprisonment, he was stripped of his personal belongings; his clothing, shoe, and accessories such as mobile phones.The prosecution relied on the assertion that it was the appellant and his alleged accomplices that called PW1 and forcefully threatened him to send money to various numbers that were allegedly owned by them. The evidence is highly discounted because;i.No mobile gadget was presented before the court to show that the same was the one that was allegedly used to call and receive the monies in question.ii.No authentic evidence was tendered to show that the person that had registered the alleged sim cards is the appellant herein. It is highly possible and probable for anyone else other than the accused person to have registered the alleged sim cards in question. Indeed, PW1 made it clear to the trial court that he had never seen the accused person and therefore was a total stranger to him.iii.PW4 placed much reliance on hearsay evidence to wit that the prisoners act in conduit with prison officers in enabling them to get access to mobile phones which they then use to swindle innocent persons out there in the public. These assertions would have been true had that phone that was allegedly seized from the accused person matched the IMEI number of the handset that was used to conduct the alleged transactions. It was the evidence of PW4 on page 25 lines 19-21 that the said handset was in communication with PW1. This evidence is a total lie and fabrication as no analysis showed the linkage between the accused person and the purported number belonging to PW1.

6. The appellant cited the case of Ndungu Kimani vs Republic[1979] KLR 282 to support the contention that the trial court greatly erred when its findings relied on an unproven claim to base the conviction. On the lack of tangible evidence to prove that the appellant had any link to the mobile phone gadget the appellant took note of the trial magistrate’s analysis of the facts specifically in lines 15-20 where he stated, “I have not seen the link between the IMEI number of the phone numbers….”Further he cited the Ugandan case ofUganda vs Dr. Stella Nyanzi Criminal Appeal No. 0079 of 2019 and Mohammed Haro Kare v Republic [2016] eKLR to support the submission that the prosecution failed to prove that the Appellant was in possession of any mobile phone with which he is alleged to have used to commit the alleged offences.

7. On witnesses the appellant submitted that he made an application to summon the officer in charge of Industrial Area Remand Prison but the same request was dismissed by the court on grounds that there were no sufficient reasons to warrant the summons to the said witness. The appellant submitted that this witness would have clarified for the easier understanding of the court the workings of the prison department to ensure safe custody of the prisoners and whether it was possible for prison officers to collude with inmates to bring in contraband mobile phones for their use whilst in custody. Citing the case of Paul Kanja Gitari vs Republic [2016] eKLR the appellant stated that the failure to call this critical witness left critical questions in regard to the present charges unresolved. Had the witness been availed perhaps his evidence would have been averse to the whole case.

8. On material inconsistencies and contradictions, the appellant cited the inconsistency in the amounts allegedly swindled making an observation that PW1 alleged that he sent kshs. 7,000, Kshs 32,000, and finally Kshs. 60,000 bringing a total of Kshs. 99,000/=. On the other hand, PW4 alleged that PW1 lost kshs. 8,000, Kshs. 60,000, Kshs. 40,000, Kshs. 30,000 and finally Kshs. 7,000 bringing a total of Kshs, 145,000/=.

9. The appellant rehashed his defence that he did not have any mobile phone in his possession and there was nothing to provide such a link. That the charges of engaging in organized criminal activity and acquiring monies from proceeds of crime remained unestablished by the evidence that was tendered.

Respondent’s Submissions 10. The Respondent submitted that though the appellant was not placed at the locus, the monetary transactions through mobile phones provided a perfect nexus to link the appellant to the crime subject of the case. That though the 1st appellant was in custody, the mobile numbers that were used to commit the crime were not only found to have been registered in his name, they were recovered from him. The cell data indicated that the transactions took place at Industrial Area Enterprise Road in Nairobi.

Analysis and Determination 11. It is this court's duty to re-consider and evaluate the evidence afresh in order to arrive at its own conclusion. In the often-cited case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated as follows on the duty of the Court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] 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 function 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, [1958] E.A. 424. ”

12. PW1 Abdikadir Said Warsame testified that on 12th January 2018 at around 9:00 a.m. he was called and sent a message by someone claiming to be Sheikh Burhan Haji on telephone number 0723613615. The said person claimed that officers from ATPU and C.I.D. were acting on allegations that he was a member of Al-Shabaab were seeking for him. He was also called through a landline number 020230059. Persons calling from this number claimed they were from the C.I.D. offices and were coming to his house. One Mr. Kiplangat on telephone number 0722260211 also called informing him that they on the way to his home.a.Four men went to his house in a Toyota Prado and second car. They put a mask on him and started pushing him around outside his house and compound, assaulting him. They took Kshs. 2,000 in cash and from Mpesa Kshs. 32,00 when they input a number and forced him to enter his pin. The number belonged to Mr. Kiplangat.

13. Due to injuries sustained, the following morning, he went to the hospital where he was admitted for three (3) days. Whist in the hospital, the perpetrators continued to demand for more money. He sent Kshs. 60,000 to telephone number 0726077161 belonging to the appellant herein.

14. PW2 Khalif Sugale Ali testified that on 13th January 2019 together with his wives they visited PW1 at Islamic Hospital. PW1 informed him of what has transpired the previous day. PW1 informed him further that the men were still asking for money from him. PW1 indeed received a call while they were in the hospital. PW1 requested aid from his family and friends. At the request of PW1, he sent Kshs. 20,000 through his Safaricom line 0720614644 to 0722382376. The registered owner of the recipient number was Ahmed Haji Khalif Ali.

15. PW4 James Mamai based at the Sub-County Criminal Investigation Office Garissa testified that a person who introduced himself to be the regional criminal investigation officer North Eastern Region Mr. Amir called PW1 through telephone number 0722382371 informing him that officers of the Anti-Terror Police Unit (ATPU) Nairobi were are assigned to Garissa wanted to visit him at his residence.

16. The said ATPU officers later visited him ordered him to switch off the security lights, humiliated and tortured him by putting a jerrican on his head and in the process they took from him Kshs. 8,000. They threatened him and asked him to send more money. The complainant sent the following amounts, Kshs. 60,000/=, Kshs 40,000/=, Kshs. 30,000/= and later Kshs. 7,000/= to phone number 0722260211. The complainant was injured in the process and sought help from relatives and was taken to the hospital. While at the hospital, the people persisted with the threats. They accused him of sponsoring Al-Shabaab. They promised to erase his name from the Al-Shabaab sponsor’s list and asked for more money.

17. That the complainant being exhausted requested one of his relatives, PW2 to send Kshs 20,000/= via Mpesa through his mobile number 0720614644 to Mpesa number 0722382371. One of complainant’s relatives, one Nurdin upon visiting him at the hospital and discussing the issue realized that Mr. Amir is a senior officer in the region and Nurdin reached out to him to find out whether it is true officers were assigned to PW1. They realized that there was no such assignment and decided to report the matter to the police. The police visited PW1 while he was still undergoing treatment.

18. During investigations data revealed that the alleged officer- in-charge Ezekiel Kiplangat was communicating with the complainant while he was in Ideal Corner Burnei House Nairobi. The caller known as Yussuf Noor Bare using mobile number 0722382371 was calling the complainant while at KCB enterprise road. The caller using mobile number 0723613615 also called the complainant while at Burnei house Ideal Corner at Industrial Area Nairobi. The mobile number 0726022161 registered as Nicholas Irungu was at KCB Enterprise road’s ideal corner.

19. The Mpesa details indicated that PW1’s mobile number 0700657424 sent Kshs. 30,000/= and another different transaction of Kshs. 7,000/= to mobile number 0722260211 registered under Ezekiel Kiplangat. The complainant also sent Kshs. 60,000/= to mobile number 0726077161 registered in the name of the Appellant. A further Kshs. 40,000/= was sent to the number by the Appellant. PW2 also sent Kshs. 20,000/= to mobile number 0722382371.

20. The investigations led the witness to believe that persons controlling these communications and transactions were at Industrial Area remand prison and they initiated communication with Industrial Area Remand Prison who handed over a handset labelled Abdiwelli Mohamed with IMEI Number 3540390975 35 680 135. They recalled and analyzed the data received from Safaricom and found that indeed the handset was used for communication. That all Mpesa transactions except for the officer purporting to be from ATPU Nairobi were connected to the appellant. The appellant had a handset with number 0723382371 registered as Ahmed Haji, 0723613615 registered as Abdiaziz Noor, and 0726077161 registered in his name and that all monies were sent to the appellant. On interrogation of the appellant, they were able to arrest his co-accused.

21. The witness also found out that the 2nd accused person worked outside the prison, is a relative to PW1 and he is the one who relayed information to the appellant.

22. PW5 Ronald Omase, liason officer from Safaricom Security Department produced cell data records, Mpesa statements, and subscriber details of mobile phone numbers registered with Safaricom. He produced the cell data for the numbers 0726077161, 0723613615, and 0722382371.

23. He further informed the court that the appellant had registered telephone number 0726077161 under identity card number 29292595. The said number was registered against six other numbers i.e. 0705496327, 0798955090, 0720960982, 0723299064, 0723215453, 0745518587. All the said numbers were registered under the Appellants name.The second number requested was 0722382371 the same is registered in the name of Nuno Hila Adan with Identity Number 25069039. The system gave two other numbers under the said Identity card; 0720172142 and 0723202028. The 3rd number 0723613615 was registered under Abdiaziz Made Noor under Identity Number 11192569, and same had two other numbers registered against it; 0720347192 and 0722373918.

24. In cross-examination, he testified that he does not have a report to indicate when the numbers were registered or the agents used. That one can register many numbers under one identity card as long as the original identity card is used. That none of the numbers featured the 2nd accused person.

25. At the close of the prosecution the trial court found the appellant and his co-accused had a case to answer and proceeded to place them on their defence.

26. DW1, the appellant gave an unsworn testimony as follows;He was remanded on 3rd March 2015 on alleged charge of stealing a motor vehicle. He did not raise bond and was remanded in Industrial Area remand since the day of his arrest. Further, he was not involved in the alleged crime before the court. All his belongings are in the custody of the prison department including his phone.

27. He further stated that someone may have registered the lines using his identity card as there are no Safaricom agents in the prison. He further testified that he does not remember the number he used previously and suspected they were deregistered.

28. DW2 Imana Amin Arare Dakare testified that he was arrested on 28th January 2017 for obtaining goods by false pretences. He was arrested in Garissa, but charged in Makadara Law courts. He was remanded in Industrial Area remand prison. Since his arrest, he has been in remand. On 3rd July 2017, he was convicted to 4 years’ imprisonment or a fine of Kshs. 200,000/=. He denied knowledge of what happened to the complainant. He told the court that he was not involved with the case, no lines were registered in his name. In all reports no money was sent to him, there were no exhibits to show he was involved.

29. In cross-examination, confirmed that he had a mobile number 0713241175 and phone is in the custody of the prison department. He contended that he came to know the appellant when they were charged in this case. He is not related to PW1 but he known to him even before the case. He knows he resides in Garissa. They worshiped in the same mosque.

30. The trial court held as much in its determination;“I don’t think it is a coincidence that one of the numbers 0726077161 was registered under the names Abdiweli Salah Mohammed. I also don’t think it is a coincidence that the signals from the mobile numbers were emanating from Industrial Area Remand Prison……. I also note that the CDR produced as Pexhb 3 provides signal location data of the mobile phones emanating from the same place for a long period of time with day timing from night to day. Clearly the users of the mobile numbers were not in constant movement but users who were in the same place for a long period. Having established that the signals emanated from Industrial Area remand prison, the logical conclusion indicates the users were prisoners……. On the 13th January 2019 at 10. 09 a.m. the same number 0713241175 received Kshs. 2,000/= from mobile number 0722382371 with the user name of Nuro Hillow Aden. This I believe is not a coincidence. This is the same amount PW4 stated was paid to the 2nd accused person for sharing the information, the fact that the same was also paid on the same day when the complainant sent money, it removes all doubt that the 2nd accused person was involved . It doesn’t matter how little his gain was, all that matter is that he gained financially from the proceeds of crime and was part of the organized crime…”

31. In Keter v Republic (2007) I EA 135, the court held inter alia that “the prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt”.

32. Hearsay evidence has been explained in Kinyatti v Republic[1984] eKLR as follows;“The evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is not admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made…..”

33. In this case there is evidence that the appellant was found with a mobile handset while in Industrial Area Remand Prison. PW4 produced the letter he wrote to the in-charge Industrial Area Remand Prison and the mobile phone handset recovered from the appellant. He informed the court that the handset was handed over to him by Inspector Njeru. The letter was produced as P exh 4A while the mobile handset was produced as Pexh 4B. PW4 was the investigating officer, the recovery of the mobile handset was within the conduct of his investigation. The appellant did not object to the production of the exhibits. The failure to call the officer from the prisons department who recovered the mobile phone from the appellant was not fatal to the prosecution’s case. The letter was clear proof that the said recovery was done as part of the investigations related to this case. His evidence was therefore not hearsay.

34. whether the prosecution’s case was full of inconsistencies. The appellant submitted that the amounts allegedly received by himself varies from the evidence of the prosecution witnesses. The court finds that what was material to support the charge was whether the appellant acted or was part of the gang that assaulted PW1 and extorted money from him and whether he benefited from the proceeds of that crime. There was clear evidence that the appellant benefitted. A number registered under his name, 0726077161, received multiple amounts from PW1 and PW2 and indeed the phone and the number recovered from him at the remand prison.

35. The Appellant’s defence that at the time of the commission of the alleged offence he was incarcerated and there is no possibility that he could have conducted the crime he was charged with goes against the cogent and credible evidence by the prosecution. The trial court noted that the court is not ignorant to the fact that the prisons has been infiltrated by persons who have allowed such vices to occur. The trial court cautioned itself of the nature of the Prisons system before citing the possibility of the appellant being part of the organized gang. This court equally takes Judicial notice of the observations of the trial court and notes that such offences are now prevalent.

36. From the evidence highlighted above the trial court relied solely on circumstantial evidence to arrive at its determination. The Court of Appeal in Ahamad Abolfathi Mohammed and Another v Republic[2018] eKLR, laid down the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:-“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (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 the guilt of the Accused; 9iii) the circumstances taken cumulatively, should from 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.”

37. The Appellant and his co-accused persons were both incarcerated at Industrial Area remand prison. The 2nd accused person was known to PW1. There was proof that he received a benefit for giving information PW1. The prosecution led evidence that the appellant and others not before the court used the information to extort money from PW1. The evidence also shows that communication from the devices extorting PW1 emanated from Industrial Area Remand prison where the appellant and his co-accused were incarcerated. The appellant was found with a mobile device during a search and recovery conducted during the course of the investigation. This, coupled with the evidence by PW4 that it is the appellant who assisted in the arrest of the co-accused points to the inference of guilt on the appellant herein. The Court therefore finds the evidence produced by the prosecution was sufficient to support both counts and the trial court did not err in convicting the appellant on both counts.

38. On whether the sentence was harsh and excessive. On the first Count Section 3 as read with Section 4 of the Prevention of Organized Crimes Act provides that upon conviction a person be liable to a fine not exceeding five Million Shillings or to imprisonment for a term not exceeding fifteen years, or both. On Count II Section 16 of the Proceeds of Crime and Money Laundering Act provides for imprisonment for a term not exceeding fourteen years, or a fine not exceeding Five Million Shillings or the amount of the value of the property involved in the offence, whichever is the higher, or to both the fine and imprisonment.

39. Further it is noted that the complainant received injuries from the assault and has lost a substantial amount. Further the appellant was not a first time offender.

40. Based on the above, the Court is of the opinion that the sentence meted out to the Appellant was commensurate with the offence and was not harsh or excessive.

41. The upshot of this courts determination is that the appeal herein lacks merit and the same is hereby dismissed.

DATED SIGNED AND DELIVERED AT GARISSA THIS 10THDAY OF JUNE 2022ALI-ARONIJUDGE