[2020] KEHC 8929 (KLR)

IN THE HIGH COURT OF KENYA AT KIAMBU

CORAM. D. S. MAJANJA J.

CRIMINAL APPEAL NO. 85 OF 2019

BETWEEN

ALEX AMBURI OTILA ........................... APPELLANT

AND

REPUBLIC............................................... RESPONDENT

(Being an appeal against the original conviction and sentence dated 2nd August 2018 in Criminal Case No. 14 of 2015 at the Magistrates Court at Kikuyu before Hon D. N. Musyoka, PM)

JUDGMENT

1. The appellant, ALEX AMBURI OTILA, was charged convicted and sentenced to 20 years’ imprisonment for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on the 20th June 2015 at Kiawanugu village Kikuyu sub county within Kiambu county, jointly with others not in court while armed with dangerous weapons namely pangas and metal bars robbed one PETER NJOROGE NGETHE of Kshs 20,000 cash, one mobile phone make LG valued at Kshs. 12,999/- and immediately after the time of such robbery, used actual violence on the said Peter Njoroge Ngethe.

2. The issue in this appeal is whether the appellant was properly convicted for the offence based on the doctrine of recent possession. The facts supporting the case of robbery with violence were proved by the prosecution were not in dispute and so was the fact that none of the witnesses saw or identified the appellant.

3. Peter Njoroge Ngethe (PW 1) told the court that around midnight on 20th June 2015 as he was entering his house he found 3 men one of whom beat him on the head and he collapsed. The assailants took away his LG400 XL, IMEI No. 34******242182 which he had purchased at Safaricom Westgate and was issued with receipt no 334615. His wife Mary Wanjiru Mungai (PW 2) came to his rescue after the assailants had left. She confirmed he had been injured and his head was oozing with blood. PW 1’s brother, Henry Njuguna Ngethe (PW 3) who heard the commotion came to assist take PW 1 to the hospital.

4. PW 2 and PW 3 took PW 1 to the hospital as PW 1. PW 2 then went to report the incident at the police station. PW 1 was admitted to hospital for 2 ½ weeks before being discharged. Thereafter he went to record his statement at Kingeero Police Station. Gerald Mutiso (PW 6), a clinical officer based at Wangige Hospital produced the P3 medical form on behalf of Dr. Kiroti Kaendi who examined PW 1 on 18th August 2015. His findings were that PW 1 complained of head injuries. The scan carried out at KNH show that he had depressed skull fractures as a result of the assault. He was of the view that the weapon used was blunt. He also confirmed that PW 1 was admitted at Kenyatta National Hospital from 20th June to 29th June 2015 and assessed injuries as grievous harm.

5. The investigating officer, PC Benjamin Lagat (PW 5) confirmed that the incident was reported on 25 June 2019. At the material time PW 1 was still in hospital. He interviewed PW 1 who informed him that his mobile phone make LG had been stolen. PW 3 have the receipt to confirm that he had purchased it. According to Corporal Patrick Mutua (PW 4) once the incident was reported, they started tracking through the mobile provider Safaricom. From the signals, the phone was being used by the subscriber of No. 0703 ***837 in Congo area, Kawangware. Together with other officers, PW 4 visited the area and with the help of the area chief, they called the numbers and pretended they needed taxi services. When the appellant appeared, he was arrested. PW 4 testified that he recovered the LG XL phone with IMEI No. 34******242182 from the appellant which he produced in evidence together with the SIM Card together with the inventory signed by the appellant. PW 5 testified that when PW 1 saw the phone at the police station, he identified it as his.

6. When the appellant was put on his defence, he denied the charge. In his sworn defence, he admitted that he was a fruit vendor in Kawangware and that on 17th August 2015 he was called by a customer and when he went to pick up that customer he was arrested by the police. They went together to his house but did not recover anything. He told the court that the phone he was using was a Samsung Galaxy phone which he had bought at a shop along Luthuli Avenue. He stated that he gave the officers the receipt showing he bought it on 31st December 2015 and that he took them to the shop where he purchased the phone and the owner confirmed that he purchased the phone at that shop.

7. From the evidence outlined, the trial magistrate was satisfied that all the elements of the doctrine of recent possession were satisfied and thus convicted the appellant. It is the application of the doctrine that is the issue in this appeal.

8. The doctrine of recent possession entitles the court to draw an inference of guilt where an accused is found in possession of recently stolen property in unexplained circumstances. The Court of Appeal summarised the essential elements of the doctrine of recent possession in Eric Otieno Arum v Republic KSM CA Criminal Appeal No. 85 of 2005 [2006]eKLR, where the court stated as follows:

In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.

9. Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. While the law is that in a criminal trial, the prosecution bears the burden of proving the case against the accused throughout the case, in a case where one is found in possession of recently stolen property like in this case, the evidential burden shifts to him to explain his possession. That explanation need only be a plausible one but one needs to put it forward for the court’s consideration. In Malingi v Republic[1988] KLR 225 the Court of Appeal expressed itself 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. Firstly, that the item he has in his possession has been stolen; it has been stolen a short period prior to the 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 the circumstances of the case recent…

10. The duty of the first appellant court is to re-appraise all the evidence afresh and reach its independent conclusions in order to determine whether to uphold the conviction bearing in mind that it neither heard or saw the witnesses testify.

11. Having reviewed all the evidence, I find that PW 1’s LG mobile phone was stolen when he was robbed. He produced the receipt confirming that he purchased his phone and also showed the unique IMEI number. The IMEI number was traced through a mobile phone being used by the appellant. The statement from Safaricom shows that the phone with the IMEI number was being used in the location where the appellant was located and when was called he was found with the phone which the complainant positively identified as his.

12. One of the issues raised by the appellant in his submissions is that the admissibility of the statements from Safaricom. The statement was produced by PW 4. The production of computer generated statements or printouts is governed by section 65(8)of the Evidence Act (Chapter 80 of the Laws of Kenya)which provides:-

65(8) In any proceedings under this Act where it is desired to give a computer print- out or statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say-

(a)Identifying a document containing a print-out or statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by the computer;

(d) dealing with any of the matters to which conditions mentioned in subsection (6) relate.

which is certified by a person holding a responsibility position in relation to the operation of the relevant device or the management of the activities which the document relates in the ordinary course of business shall be admissible in evidence.

13. Neither the prosecution nor the learned magistrate paid attention to the admissibility of the statements and the need to comply with the provisions of section 65(8) of the Evidence Act. The certificate required by the Act was not produced. In Charles Matu Mburu v Republic NYR CA Crim App. No. 34 of 2014 [2014]eKLR, the Court of Appeal, in similar circumstances, observed that;

In this case, the computer print-outs that were produced by the prosecution of the call history on the deceased’s mobile phone do not contain the certification mentioned in the above provision. Further, no evidence was tendered on how the said print-outs were generated. We agree with the appellant’s submission that the said print-outs had not been verified by Safaricom, hence they were inadmissible. We find that the two lower courts erred in relying on the said print-outs.

14. The fact that the statements were produced without complying with the conditions for admissibility, the investigating officer did not explain the nature and content of the statement comprising 6 pages. Although the appellant’s phone IMEI number appeared in the first column of the statement, the name of the subscriber of No. 0703 ***837 which was used to trace the appellant was not apparent from the statement. The number was not even proved to be that of the appellant. The number was used to call another person whose relationship with the appellant was not disclosed or proved. Finally, PW 4 did not make any effort in his testimony to explain the elements, nature and content of the statement. PW 4 merely produced the statement and it was admitted in evidence. In my view, this was improper and prejudicial to the appellant in light of the fact that he was entitled to understand and appreciate the contents of the statement to enable cross-examine the witness.

15. Although the appellant was found with the phone belonging to PW 1, the case against the appellant could not be proved without production of the computer generated statements of account from Safaricom connecting PW 1’s phone to the appellant. The statements ought to have been rejected or the matter adjourned to enable the prosecution comply with the provisions of section 65(8) of the Evidence Act. In any case, as I have stated, the production of the statements was perfunctory and the witness did not explain how they related to the complainant and the appellant.

16. In light of the improper admission of crucial evidence, the conviction cannot stand and is unsafe. For the reasons I have stated, I allow the appeal and quash the conviction and sentence. The appellant is set free unless otherwise lawfully held under a separate warrant.

SIGNED AT NAIROBI

D.S. MAJANJA

JUDGE

DATED and DELIVERED at KIAMBU this 29th day of JANUARY 2020.

J. N. ONYIEGO

JUDGE

Appellant in person.

Mr Kasyoka, Prosecution Counsel, instructed by the Director of Public Prosecutions for the respondent.