[2008] KECA 37 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT KISUMU

CRIMINAL APPEAL 18 OF 2008

CALEB OCHIENG OGOLLA ….……..……..………….. APPELLANT

AND

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

(Appeal from a judgment of the High Court of Kenya at Kisumu (Mwera, J.) dated 3rd March, 2008

in

H.C.CR.A. NO. 59 OF 2006)

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JUDGMENT OF THE COURT

The appellant was convicted by the Senior Resident Magistrate, Kisumu, on four counts, namely, handling stolen goods contrary to section 322(1) of the Penal Code; preparation to commit a felony contrary to section 308(1) of the Penal Code; being in possession of a firearm without a Firearm’s Certificate contrary to section 4(1)as read with section 4(3) of the Firearm’s Act and lastly, being in possession of ammunitions without a firearms certificate contrary to section 4(1) as read with section 4(3) of the Firearms Act. The appellant was sentenced to 7 years imprisonment for handling stolen property; 2 years imprisonment for preparation to commit a felony and to 7 years imprisonment for unlawful possession of a firearm all to run concurrently. The trial magistrate inadvertently failed to pass sentence for the unlawful possession of ammunitions. The appellant’s appeal to the High Court against the convictions and sentences were dismissed. The superior court in addition corrected the error in sentencing and passed a sentence of 7 years imprisonment for unlawful possession of the ammunitions to run concurrently with other sentences.

The subject matter of the charges is an AK 47 rifle serial No. 794480and 28 rounds of 7. 62 mm ammunition all valued at Shs. 80,550/=. The prosecution case was that the appellant was found in possession of them inside a bus on 27th September, 2004 and that after the rifle and ammunitions were recovered from the appellant, it was discovered that the rifle loaded with 28 rounds of ammunition had been stolen from Chemelil police post on 18th July, 2004. The evidence to support the charges was briefly as follows.

On 27th September, 2004, Julius Kibet Sigilai(PW3) was driving a bus Reg No. KAQ 172Z belonging to Dolphin Coaches from Nairobi to Kakamega. He had a co-driver Joshua Peter Ochieng(PW2)and a conductor Gilbert Isawe(PW1). The bus which had passengers reached a police road block at Awasi at about 9:00 p.m. The appellant stopped the bus at a stage about 50 metres past the roadblock. After the bus stopped the appellant entered the bus. He then alighted and picked a bag and again boarded the bus holding the bag. He sat about the 3rd seat behind the driver and placed the bag on his lap. The bus conductor found the appellant’s conduct of boarding the bus and then alighting to pick a bag to be strange and it aroused his suspicion.

The co-driver also thought from the appellant’s conduct that the appellant was carrying either chang’aa or cannabis sativa. After the bus started moving, the bus conductor who was sitting opposite the appellant approached him and told him that he wanted to inspect the bag. The appellant resisted but the conductor managed to dip his hand inside the bag. He touched something metallic which appellant said was a window and offered to remove it himself. The conductor then seized the appellant and the co-driver went to the assistance of the conductor and dipped his hands in the bag and pulled out an AK 47 rifle, a magazine and a Somali sword. There was also a piece of a blanket and some wet clothes in the bag.

When the bus reached a road block at Ahero, the matter was reported to PC Didacus Oyugi(PW6) who took possession of the gun, ammunitions and a sword which were wrapped in a piece of blanket, arrested the appellant and took him to Ahero police station. Later, PC. Hilary Kipkosge Boit(PW4) identified the rifle as the one which had been issued to him at Chemelil Police Post and which mysteriously disappeared from beneath the drawer at the police post on 18th July, 2004 between 1:30 p.m. and 4 a.m.

The appellant stated in his defence that he boarded the bus at Awasi to go to Ahero where he lives and paid Shs.50 as fare but the conductor demanded Shs.100 saying it was at night; that he alighted when the bus reached the road block at Ahero; that he was then taken to Ahero Police Station, interrogated about the bag; that he was beaten when he said that he did not know the owner of the bag and that when the police opened the bag they found a gun.

The trial magistrate believed the prosecution case and made the following findings:-

“Having regard to all the evidence adduced herein, I find that the evidence of PW1, 2 and 3 is firm and consistent as to how accused boarded the bus just past Awasi road block. The vehicle lights were still on when accused was boarding the bus and the entrance of the bus was positioned at a place where PW3 (driver) could see accused boarding the bus. It is therefore not plausible that PW1 (conductor) could have preserved a bag with a gun for purpose of implicating passengers like accused just because PW1 wanted to be paid Shs.50 over and above the normal fare of Shs.50/=.

I am therefore incline (sic) to believe that accused is the one who had the bag which contained the gun; sword and magazine.”

The superior court after reviewing the evidence said in part:-

“The claim of the appellant that he found the bag and gun at Ahero Police station, following a dispute over fare with a night bus conductor did not hold much water. It was an afterthought since it was not put to PW1 when he testified ……… But his whole story did not raise doubt over the credible and consistent evidence of PW1, 2, and 3 – persons who did not know the appellant before. They had no grudge with him and their evidence was not contradictory. There was no strong defence either. Instead it was an afterthought.”

There are five grounds of appeal, firstly that the charge was defective; two, that the evidence of PW1, PW2, PW3 was not corroborated; three, that prosecution failed to call sufficient witnesses to prove the charge; four, that the constitutional rights of the appellant enshrined under section 72 of the Constitution was breached, and, lastly, that the sentences should be reduced.

The appellant made submissions in support of the appeal by way of written submissions.

It is apparent from the grounds of appeal and written submissions that the main complaint is about the credibility and sufficiency of the evidence of PW1, PW2 and PW3. The appellant submitted, among other things, that, the evidence of PW1, PW2andPW3 was not subjected to a fresh and exhaustive examination; that the three witnesses were employees of the same bus company and had the obligation to frame up the appellant to defend one of their own after disagreement over bus fare; and, that, the prosecution should have called independent witnesses.

It is trite law that a second appeal should be confined to points of law only. It is also trite law that this Court will not interfere with concurrent findings of fact of the two lower courts unless they are shown to have not been based on evidence. (See KARINGO V. REPUBLIC[1982] KLR 213; MWITA V. REPUBLIC[2004] 2 KLR 60).Further, an appellate court does not normally interfere with those findings by the lower court which are based on the credibility of witnesses unless no reasonable tribunal could have made such findings or it is shown that there existed errors of law (See REPUBLICV. OYIER [1985]KLR 353).

The submission by the appellant that the superior court did not subject the evidence to fresh and exhaustive examination is not true. Indeed, the record shows that the superior court re-evaluated and reconsidered the evidence of the six witnesses and made its independent findings.

This was a case dependent on the credibility of PW1, PW2 and PW3, the three key prosecution witnesses. The trial magistrate had the advantage of seeing and hearing them after which he made a finding that the witnesses were firm and consistent.

The superior court made its own independent finding that evidence of PW1, PW2 and PW3 was credible and consistent.

The appellant stated at the trial that the police found a gun in the bag when it was opened at Ahero Police Station. The statement of the appellant that PW1, PW2 and PW3 fabricated the case against him because of the dispute over bus fare was not obviously credible. It is incredible that PW1, PW2 and PW3 could have surrendered a gun and ammunitions worth over Shs.80,000/= to police merely to get an extra Shs.50as bus fare from the appellant. There was overwhelming evidence against the appellant to support the concurrent findings of fact by the two courts below and there are no grounds for interfering with these findings.

The appellant submitted that his constitutional rights under section 72(3) of the Constitution were breached because he was arrested on 27th September, 2004 but taken to court on 14th October. This complaint was not raised either in the trial court or in the superior court. It has been raised for the first time in this court.

In DOMINIC MUTIE MWALIMU V. REPUBLIC Criminal Appeal No. 217 of 2005 (unreported) this Court said in part:-

“In our view, the mere fact that an accused person is brought to court either after the twenty-four hours or fourteen days as the case may be stipulated in the Constitution does notipso factoprove a breach of the Constitution."

The appellant did not complain at the trial that his constitutional rights were breached and in the absence of such complaint, no burden was cast on the prosecution to prove that the appellant was brought to court as soon as is reasonably practicable notwithstanding that he was not brought before the court within 24 hours of his arrest.

This complaint is raised as an afterthought and has no merit.

The sentences imposed on the appellant are lawful. By dint of section 361(1) (a) of the Criminal Procedure Code this Court cannot entertain an appeal on the severity of sentence.

For those reasons we dismiss the appeal in its entirety.

Dated and delivered at Kisumu this 28th day of November, 2008.

P.K. TUNOI

……………..

JUDGE OF APPEAL

E.M. GITHINJI

……………….

JUDGE OF APPEAL

D.K.S. AGANYANYA

………………

JUDGE OF APPEAL

I certify that this istrue copy of the original.

DEPUTY REGISTRAR