[2019] KEHC 5978 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL APPEAL Nos. 178, 179 & 180 OF 2011

DAVID MACHARIA NGUNJIRI............................................1ST APPELLANT

PETER KARUBI THEURI......................................................2ND APPELLANT

JOSEPH NJIIRE KARURI......................................................3RD APPELLANT

VERSUS

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

(Appeal from the judgment of the Hon. J. Kiarie Senior Principal Magistrate

at Nyeri delivered on the 10th August, 2011 in Criminal Case No. 22 of 2010)

JUDGMENT

FACTS

1. The Appellants, David Macharia Ngunjiri aliasOsama, Peter Karuri Theuri, Jospeh Njiire Karuri were charged with two counts of Robbery with Violence contrary to Section 296 (2) of the Penal Code; they were also charged with an alternative charge of Handling Stolen Goods contrary to Section 322 (2) of the Penal Code;

2. The particulars of the charge on Count 1 was that on the 10th November, 2009 at Muringato Estate in Nyeri County, the appellants jointly with others not before the court while armed with dangerous weapons namely pangas, mallets iron bars, somali swords and an imitation of a firearm robbed Christopher Muchina Gitu of three mobile phones make Nokia 3120 Serial 355723026483378, Nokia E75 Serial No.356855021453342, Nokia 2630 Serial No. 353121023610568; Euro Star Decoders Serial Numbers ATVO 71201474 and VTA 1020 Serial No.2007090032131, motor vehicle radio, a car conditioner equipment and unknown amount of money all valued at Kshs 250,000/= and at or immediately before or immediately after the time of such robbery killed Christopher Muchina Gitu;

3. On Count II on the same date at the same estate and in the same County the appellants jointly with others not before the court while armed with dangerous weapons namely pangas, mallets, iron bars, somali swords and an imitation of a firearm robbed Nuba Molu Golisa of a mobile phone make Nokia 3220 valued at Kshs 10,000/ and at or immediately before or immediately after the time of such robbery wounded Nuba Molu Golisa;

4. The particulars of the alternative charge of handling stolen goods for the 1st appellant were that on the 15/11/2009 in Nyeri Township within Nyeri County otherwise than in the course of stealing dishonestly undertook the disposal of a mobile phone Nokia 3220 Serial No.357623001613650 valued at Kshs 10,000/= the property of the Nuba Molu Golisa for the benefit of Nahashon Mureithi Wangechi knowing or having reasons to believe it to be stolen or unlawfully obtained.

5. The 2nd appellant also had two alternative charges of handling stolen goods; the particulars were that on the 28/12/2009 at Chania Estate in Nyeri County Otherwise than in the course of stealing dishonestly handled one mobile phone Nokia E75 Serial No. 356855021453342 valued at Kshs 50,000/= the property of the deceased Christopher Muchina Gitu knowing or having reasons to believe it to be stolen or unlawfully obtained;

6. The other particulars were that on the 28/12/2009 at Nyeri township in Nyeri County the 2nd appellant otherwise than in the course of stealing dishonestly retained a wrist watch make Seiko Automatic valued at Kshs 15,000/= the property of the deceased Christopher Muchina Gitu knowing or having reasons to believe it to the stolen or unlawfully obtained;

7. As for the 3rd appellant the particulars of the alternative charge of handling stolen goods were that on the 28/12/2009 at Wazee Hukumbuka Bar, Nyeri Township within Nyeri County otherwise than in the course of stealing dishonestly undertook the disposal of two Euro Star Decoders Serial Numbers ATVO 71201474 and VTA 1020 Serial No. 2007090032131 valued at Kshs.18,000/= the property of the deceased Christopher Muchina Gitufor the benefit of David Mwondu Karani knowing or having reasons to believe them to be stolen or unlawfully obtained;

8. The prosecution called a total of fifteen (15) witnesses in furtherance of its case; after the trial, all three appellants were found guilty and convicted on the two (2) counts of robbery with violence; the sentences that were meted out on Count 1 was the mandatory death sentence; but the sentences on the Count II were all held in abeyance for all the appellants;

9. Being aggrieved by the conviction and sentence, the Appellants filed a Petition of Appeal and Amended Ground of Appeal which grounds were consolidated and are summarized as follows;

(i) The trial court erred in finding the appellants guilty of robbery with violence based on insufficient evidence;

(ii) The prosecution did not discharge its burden of proof that the Appellants committed the offence of robbery with violence to the required standard of proof;

(iii) The trial court erred with regard to the application of the doctrine of recent possession;

(iv) The trail court erred in passing a death sentence based on circumstantial evidence and failed to invoke section 179 of the Criminal Procedure Code;

10. At the hearing hereof the 1st appellant was represented by learned counsel Mr Theuri, the 2nd appellant was represented by Ms Lucy Mwai and the 3rd appellant by Ms Grace Maina whereas Ms Gicheha appeared as the prosecuting Counsel for the State; all the counsels present made oral presentations; hereunder are the rival submissions;

1st APPELLANT’S SUBMISSIONS

11. Counsel for the 1st appellant submitted that the trial magistrate erred in relying on the doctrine of recent possession; that this doctrine was not applicable in the circumstances; there were no eye-witnesses and the only reason the 1st appellant was convicted was because he allegedly sold a Nokia 3120 mobile phone; the phone in question was not found on the 1st appellant; in his evidence the Investigating officer (PW15) confirmed that he did not find the 1st appellant in physical possession of the phone; that it was recovered from James Mureithi Kinyua (PW 8) who explained that Nahashon Mureithi (PW4) had left it with him and had pledged it as security for loan of Kshs500/=;

12. PW4 in his testimony told the court that the phone had been sold to him by the 1st appellant; however under cross-examination he admitted that there was no agreement entered into with the 1st appellant for the sale of the phone; the 1st appellant having denied selling the phone to PW4 there was no complete evidence that the trial court could have used to arrive at the conclusion that the 1st appellant had sold the phone to PW4; the case-law relied on was that of Ogembo Vs Republic KLR(2003) where the Court of Appeal held that for the doctrine of recent possession to apply physical possession of the stolen item must be proved as against the accused; that this doctrine was not applicable to the 1st appellant;

13. The second ground of appeal related to the evidence of PW4and PW8 being inconsistent and contradictory; and that the prosecution did not prove beyond reasonable doubt that the 1st appellant committed the offence of robbery with violence; the evidence that led to his conviction was that PW4 and PW8;

PW4admitted that nothing was recorded in writing; that he didn’t demand for a written agreement, a photo-copy of ID nor a witness; as for PW8his evidence was that the phone was given to him by PW4; that he was not buying the phone but holding it as security; the appellants contention was that the inconsistencies in their evidence left a lot of doubt as to the manner the phone was obtained from that these doubts ought to be resolved in favour of the 1st appellant;

14. Without the evidence that it was the 1st appellant who sold the phone to PW4 this would then mean that the offence of robbery on both counts was not proved to the required threshold;

15. Counsel submitted that the 1st appellants appeal be allowed; and that the conviction be quashed and the sentence set aside;

RESPONDENT’S RESPONSE

16. In response prosecuting counsel submitted that for the doctrine of recent possession to be applicable the following pre-conditions must be established; that the property found with the suspect must be positively identified by the complainants; it must be proved that the property was stolen from the complainant and that it was recently stolen;

17. In this case ‘PEx.1’ a mobile phone was collected from PW8who had actual possession of the phone; his evidence was that it had been sold to him byPW4 who explained that the same had been sold to him by the 1st appellant; Counsel submitted that the two prosecution witnesses explained how they came into contact with the exhibit which had been sold to them in the same month the robbery took place;

18. The circumstances in which the phone was recovered as stated by PW15 was that the appellant was identified by his accomplices namely Accused 1, Accused 2, Accused 3 and Accused 4; they led the investigating Officer (PW15) to the house of the 1st appellant; who then led the interrogating officer toPW4; the children of the deceased PW9 and PW10 testified and positively identified the phone that had been recently stolen from the deceased; the 1st appellant did not lay claim on the phone neither did he state that it belonged to him;

19. On the contention that the prosecution evidence was contradictory counsel submitted thatPW8 stated that he knew the 1st appellant as he was a regular customer at the hotel where he and PW4 worked; that he bought the phone from PW4between the dates of 10/11/2009 and 15/11/2009; the same evidence was given byPW4 who led PW15to PW8 and both these witnesses had explained how they came into contact with the phone; that it was only the 1st appellant who could not explain his contact with the phone; the only presumption is that the 1st appellant came into possession of the phone when he robbed the deceased; and the phone was positively identified by the complainant:

20. There was no contradiction pointed out to create any doubt in the evidence adduced by these two prosecution witnesses; the evidence of PW4 and PW8was that they knew the 1st appellant by his nickname “Osama”; PW4did not stay long with the phone before he disposed of it to PW8; the conviction was due to the overwhelming evidence against the 1st appellant;

21. Counsel prayed that the appeal be dismissed and the conviction and sentence be upheld;

REJOINDER

22. Counsel for the 1st appellant reiterated that there was no concrete evidence that the 1st appellant had sold the phone to PW4; there was no agreement and the 1st appellant denied selling the phone and it was upon the prosecution to prove that there was a sale by the appellant to PW4; that the arrest of the appellant was based on the evidence of the accomplices whose evidence never implicated the 1st appellant; he again reiterated that the conviction was unsafe and that the appeal be allowed;

2ND APPELLANT’S SUBMISSIONS

23. Counsel submitted that the doctrine of recent possession was wrongly applied; that the doctrine applies when there is only circumstantial evidence and there is no other possible explanation on possession;

24. The offence was committed on the 10/11/2009 and the stolen mobile phone make Nokia E75 was recovered in possession of the 2ND Appellant on the 28/11/2009; the phone was recovered by PW15 upon being led by the 1st accused (David Nandala Simiyu) at trial to the house of the 2nd Appellant; under cross-examination he stated the truth that he had used the phone without worrying; that one of the co-accused one Simon Gwandaru who had escaped from custody had pledged it to him for the sum of Kshs.2000/= which he said he needed to get his wife discharged from hospital;

25. As for the recovered wrist watch, when PW15 arrested the 2nd appellant he told him that he had a watch which he had bought for Kshs.900/= and had taken it for repair and he led the officer toPW3 where the watch was retrieved; PW9Identified it by familiarity and could have been mistaken; the family of the deceased did not avail any documentation in the form of a receipt; and the prosecution did not provide the serial number; the appellant contended that the evidence tendered on the wrist watch cast doubts on the prosecution case as it could not be ruled out that it had been bought by the 2nd appellant; it was not positively identified, the value was not proved and it needed to prove that it belonged to the deceased and that it had been recently stolen;

26. Counsel submitted that the 2nd appellant ought not to have been convicted as there was no evidence that the 2nd appellant was at the scene; case-law referred to Cr.App.166 of 2011 Daniel Muthoni M’arimi Vs Republic (2013) and Andrea Obonyoand other case –law as set out in List of Authorities:

27. Counsel submitted that in this instant case there was an explanation given on possession; that the time of theft and recovery of the phone was a long time for mobile phones; and further submitted that the case was not proved to the desired threshold; and prayed that the appeal be allowed and the conviction be quashed and sentence set aside.

RESPONDENT’S RESPONSE

28. In response counsel submitted as follows; the 2nd appellant was arrested through a co-accused (David Simiyu) who led PW15 to the 2nd appellant’s house where he was found in possession of the Nokia E75 that had been stolen from the deceased; that PW15 counterchecked the Safaricom data produced as “P Exhibit 22” and confirmed that the mobile number used on the stolen phone from the date of the robbery to the arrest belonged to the 2nd appellant;

29. That even up to the time of trial the SIM card was still in the phone; this contradicts the evidence of the 2nd appellant that he had gotten the phone from his cousin Gwandaru on the 18/12/2009 in exchange for Kshs. 2000/=that Simon needed to discharge his wife from hospital; that he was using his accomplice as a scapegoat because he was not present in court; this casts doubt on the credibility of his evidence which is displaced by the evidence of PW15 that he used the phone from the date of the robbery till his arrest; the only logical conclusion is that he participated in the offence;

30. As for the wrist watch when it was presented in court it was identified by PW2a former spouse of the deceased and his sons PW9 and PW10; it was the 2nd appellant who led PW15 to the watch repairer PW3 who told the investigating officer that it had been taken for shortening of the strap; the 2nd appellant had said that he had taken it for repairs as it had quarry dust; he did not produce any receipts to support his contention that he had bought the watch;

31. The 2nd appellant also led PW15 to where he had buried the imitation of a gun which was used to scare the victims; the evidence tendered was overwhelming and the 2nd appellant was properly convicted and sentenced; the appeal is lacking in merit and ought to be dismissed.

REJOINDER

32. Counsel prayed that the court re-visits the evidence on the mobile date on the dates as the 2nd appellant states that it was on the 18/12/2009 when the phone was given to him; as for the wrist watch the burden of proving ownership was not discharged it was the family of the deceased who ought to have produced the receipt; there was no inventory produced by the police of the items recovered from the 2nd appellant; there was no charge of a firearm and there was no ballistic report;

33. The absence of the inventory of the recovered items should persuade the court; counsel urged the court to allow the appeal as it had merit.

3RD APPELLANT’S SUBMISSIONS

34. Counsel submitted that there were four (4) grounds of appeal the 3rd appellant sought to rely on; the first being that the prosecution failed to prove its case to the desired threshold, the offence of robbery with violence has three key ingredients; the offender should be armed with a dangerous or offensive weapon; the offender be in the company of another person(s); and immediately before or after the robbery the offender uses personal violence on the victim; that no weapon was recovered from the 3rd appellant; and on the other two ingredients none of the prosecution witnesses identified the appellant as being present at the commission of the offence; therefore the ingredients of robbery with violence were not proved against the appellant;

35. The trial court relied on the doctrine of recent possession when convicting the 3rd appellant; in the case of Isaac Nganga Kahiga vs Republic Cr. Appeal No. 272 of 2005 (CA) Nyeri the Court of Appeal set out four (4) key ingredients that must be proved when invoking the doctrine of recent possession; which are as follows;

(i) The property was in the suspect’s possession

(ii) The property is positively identified as the property of the complainant;

(iii) The property must have been stolen from the complainant;

(iv) And it was recently stolen from the complainant;

36. None of the 15 prosecution witnesses stated that any of the stolen items were found on the 3rd appellant; the evidence of PW5 stated that items left him were two video machines but the Charge Sheet does not mention video machines which are totally different from the decoders alleged to have been with stolen; the 3rd appellant admits to having left the decoders with PW5 a waiter to look after whilst he continued drinking; the machines that were recovered were not the property of the complainants;

37. The incident took place on the 10/11/2009 which was approximately over a month from the date of recovery of the items; the items were highly portable; counsel submitted that the doctrine could not apply;

38. On the other grounds of appeal which were consolidated counsel submitted that none of the stolen items ‘P Exh 9’ and ‘P Exh. 10’ were recovered in possession of the 3rd appellant; PW15stated that the items were recovered from PW5and not from the 3rd appellant; PW5 stated that the 3rd appellant had left them with him and therefore it was the word of PW5 against that of the 3rd appellant; the items recovered were video machines and not decoders;

39. Counsel submitted that the two counts and the alternative charge were not proved to the required standard; there were doubts cast on the prosecution case which doubts ought to be resolved in favour of the 3rd appellant;

40. Case-law relied on are Solomon Lokwayi Lobuin vs Republic (2016) e KLR; Joseph Kuria Ndungu & another vs Republic (2006) e KLR; Dominic Nzangi Kimeu vs Republic (2017) e KLR;

41. The appellant urged the court to re-assess and re-evaluate the evidence and to allow the appeal in its entirety as it had merit; the conviction be quashed and the sentence set aside;

RESPONDENT’S RESPONSE

42. In response counsel submitted that the 3rd appellant was pointed out to PW15

43. by the 1st accused (David Simiyu) and the 2nd accused; upon his arrest the 3rd appellant informedPW15that he had taken the decoders to PW5who confirmed that the 3rd appellant left the items on the 13/11/2009; which was three (3) days after the robbery had taken place; PW5 narrated that the items which were in a green paper bag were given to him by the 3rd appellant who for over one month never came for the items; he retrieved the items from the store where he had placed them;

44. That is was the 3rd appellant who led and directed the police to PW5who was a watchman working at a bar and lodging; that even though PW5 had referred to the stolen items as video machines the items were in actual fact decoders; if the 3rd appellant had not led the police to the place otherwise they wouldn’t have gone there; the 3rd appellant never raised any objection at production that the stored items were not the ones he had given; which confirms that the luggage was what was left with PW5;

45. The doctrine of recent possession was not watered down by the fact that the 3rd appellant was not found in actual possession at the time of his arrest; the evidence shows that he was in possession of the items three (3) days after the robbery; he led the police to collect the items from PW5acknowledging possession of the stolen items; PW2,PW9 and PW10 all confirmed that the items were stolen from the deceased; and produced the boxes in which the decoders were purchased in; and the serial numbers on the boxes matched the numbers on the recovered decoders;

46. The presumption was that the 3rd appellant was part of the gang of robbers that robbedPW1 and the deceased; the prosecution only needed to prove one of the key elements of robbery with violence, the prosecution proved this and proved that PW1 and the deceased were wounded and the deceased succumbed to his injuries; in his defence the 3rd appellant did not deny being in possession of the two decoders he only implicated a co-accused who had escaped from custody;

47. Counsel reiterated that the prosecution had proved its case against the 3rd appellant beyond reasonable doubt and had met the threshold; that the conviction was very safe; that the appeal be dismissed and the conviction and sentence be upheld;

REJOINDER

48. The evidence ofPW5 was that there were video machines in the paper bag; the prosecution never rebutted the evidence of the video machines; as for recent possession nothing was found on the 3rd appellant; that it was PW5 who was found in possession of the decoders three (3) days after they were stolen; PW5 stated that the machines were left by the 1st accused who is still at large;

49. Counsel prayed that the appeal be allowed.

ISSUES FOR DETERMINATION;

50. After taking into consideration the submissions made by the Appellants and the Respondent this court finds the following for determination; which are;

(i) Whether the prosecution proved its case to the desired threshold;

(ii) Whether the trial court erroneously invoked the doctrine of recent possession;

(iii) Whether to resentence the appellants

ANALYSIS

51. This court being the first appellate court it is incumbent upon it to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion bearing in mind that this court did not have the opportunity or benefit of hearing and seeing the witnesses as they testified. Refer to the case of Okeno vs Republic (1972) EA 32.

Whether the prosecution proved its case to the desired threshold

52. The appellants all contend that the prosecution failed to prove the offence of robbery with violence contrary to Section 296 (2) of the Penal Code to the desired threshold on both counts;

53. Section 296(2) sets out clearly the essential ingredients of the offence of robbery with violence and reads as follows;

a) The offender is armed with any dangerous and offensive weapon or instrument; or

b) The offender is in the company with one or more other person or persons; or

c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes, or uses other personal violence to any person;

54. It is noted from the record that the trial court in its judgment did not specifically elaborate in detail these three key ingredients (s) of the offence of robbery with violence but it rejected their defences and made a finding that the prosecution had convincingly connected the appellants to the robbery and had proved Counts 1 and II to the desired threshold; it stated as follows;

“In the upshot I find that count one and count two have been proved beyond reasonable doubt whatsoever as against accused 2 herein Peter Karuri Theuri, accused 3 Joseph Njire and accused 6 David Macharia Ngunjiri alias Osama and at Section 215 of the Criminal Procedure Code, I convict each one of them on each one of the two offences charged in counts 1 and 2 hearin.”

55. In the absence of the elaboration of the key ingredients of the offence of robbery with violence it is then the duty of this court to re-evaluate this issue as it was raised by all the appellants; upon perusal of the record this court notes that Jacob Mureithi (PW15) who was the investigating officer testified that using serial numbers provided and with the assistance of the Safaricom, the service provider, he was able to track the stolen handset to a girlfriend of the 1st accused one David Nandala Simiyu; upon his arrest he gave them vital information and names of those involved in the robbery; one of the names given was that of the 2nd appellant who upon his arrest was found with the Nokia E75; the said Simuyu also led PW15 to the house of the 3rd appellant; there was a 5th accused who led him to the 1st appellant; in his defence the 2nd appellant implicated the 4th accused who escaped from custody and is still at large; the 3rd appellant also implicated Simuyu who also escaped from custody;

56. From the foregoing this court is satisfied that the appellants had an accomplice namely one David Nandala Simiyu; and is therefore satisfied that the prosecution adduced sufficient evidence to prove that the appellants were in the company of one or more other person(s) who helped them rob the deceased and PW1 of their belongings; there was also proof of actual violence inflicted upon the deceased and PW1 before and during the robbery; PW1’s evidence was that the police took him and his employer to Outspan Hospital; he was hospitalized for two (2) days and discharged as for his employer his condition worsened and he was transferred to Nairobi Hospital where he passed on the 27/11/2009; the injuries sustained by PW1 and that of the deceased were corroborated by the evidence of Peter Muriuki Ndegwa (PW11) a pathologist who conducted the postmortem and produced the report (P Exhibit 1 a) and Dr. Evelyne Chege (PW 13)who examinedPW1 and produced P3 form (P Exhibit 2).

57. It is trite law that the prosecution only needs to prove one of the key elements of robbery with violence; in this instance this court is satisfied that the prosecution proved that the appellants were in the company of one or more other person(s): and that PW1 and the deceased were wounded by the appellants; the deceased later succumbed to his injuries;

58. This ground of appeal is found lacking in merit and is hereby disallowed;

Whether the trial court erroneously invoked the doctrine of recent possession

59. All the three (3) appellants challenged their convictions and contended that the doctrine of recent possession was wrongly invoked by the trial court; in essence their contention was that before the doctrine could be invoked the prosecution ought to have first proved the essential pre-conditions; these being that the items were stolen; that the appellants were found in possession of the items; that the items had been stolen within a short period prior to the possession; that the items were positively identified as being that of the deceased orPW1 ; their main contention was that the pre-condition of being found in physical possession when arrested was not satisfied;

60. The facts for the case as recorded by the trial court are that the deceased Christopher Muchina Gitu lived alone and PW1 was his watchman; on the fateful night of 10/11/19 the deceased had called his watchman and informed him that he was on his way home; PW1’s testimony was that he opened the gate to let the deceased’s motor vehicle through and a gang forced their way in and ordered him to lie down and then beat him up with an iron bar; the lighting was insufficient but he estimated the robbers to be seven in number; he was robbed of his jacket and a Nokia mobile phone;

61. The evidence of PW1was that he was not able to identify or recognize any of the robbers; PW15using the service provider Safaricom managed to trace the phones that were stolen; this led to the arrest of one suspect who then led him to the others; on the 25/12/2009 PW2 who was the estranged wife of the deceased was informed that some of the stolen items had been recovered and she was requested to visit the police station to identify the property; her evidence was that she went to the police station with her children who had resided with the deceased and were more acquainted with the property and were better placed in identifying the items; she was able to identify the deceased’s motor vehicle make Honda CRV, a radio cassette make Sony, three DVD changers, Sony speakers; she also identified a wrist watch (PExh.12) that the deceased wore three years before they separated and she identified a phone the deceased had given to their son; the children were able to identify the phones (P Exh.1, 6 and 7) and the decorders (P Exhibit 8 and 9);

62. The trial court after hearing the prosecution witnesses and the defences raised by the appellants rejected the defences as being ‘simply not credible’; it made a finding that the prosecution had proved beyond reasonable doubt that the property that was recovered was stolen from the deceased and that the recovered items were positively identified as belonging to the deceased and PW1; and stated as follows;

“On closely analyzing the evidence I find that the identification of exhibits 1, 6, 7, 8, 9, 10a and 10b, 11 and 12 by PW1, PW1 Molu PW2 Jane Muchina PW8 Benson Muchina and PW10 Joy Muchina as well as PW6 and 7 for phone exhibit P/Exhibit 7 and P/Exhibit 8 and PW4 for phone exhibit and PW5 David Mwondu Karani for P Exhibit 8 and 9 and PW3 for wristwatch P/Exhibit 12 is not only positively but to large extent thorough no doubt was left (or could be left in the minors of reasonable person or tribunal addressing itself to these facts) to the court that these items belonged to the deceased herein Christopher Muchina Gitu”(Sic)

63. This court finds no basis for interfering with the trial courts finding that the property had been stolen and that the said property was properly identified as belonging to the deceased and PW1; the only issues that needs to be re-evaluated is the issue of whether the appellants had physical or constructive possession of the deceased’s or PW1’s property that was stolen and whether possession was recent; and whether the doctrine was properly invoked; this court will endeavor to re-evaluate and consider each of the appellants’ cases;

64. The 1st appellant David Macharia alias Osama was convicted because he sold a Nokia 3120 mobile phone (P Exhibit 1) to PW4; the phone in question was not found on the 1st appellant; and in his evidence the Investigating Officer (PW 15) confirmed that he did not find the 1st appellant in physical possession of the phone; that it was traced to Nahashon Mureithi (PW4) who testified that the 1st appellant sold the phone to him on the 15/11/2009; he led PW 15 to James Mureithi Kinyua (PW8) from whom it was recovered and he explained that it had been left with him by PW4 who had pledged it as security for loan of Kshs.500/=; The evidence of PW4 was corroborated by that of PW8;

65. This court reiterates that the trial court made a proper finding that the property had been stolen and that the family of the deceased positively identified the Nokia mobile phone (P Exh1) by producing the boxes it was purchased in and the International Mobile Equipment Identity (IMEI) on phone matched with that found on the boxes; this court notes from the evidence of PW4 and the mobile data collected the lapse of time from the date of the mobile phone being stolen 10/11/2009 to when it was sold to PW4 on the 15/11/2009 was only five (5) days; due to the nature of the item this period can be deemed to be ‘recent’;PW8 was found in actual possession upon recovery but there are co-existing circumstances which point to other persons namely the 1st appellant and the PW4 as having been in possession of the mobile phone; the 1st appellant’s was constructive possession whereas that of PW8was actual;

66. The doctrine of recent possession is a rebuttable presumption of fact; and therefore it is the duty of the 1st appellant and the others when called upon to offer an explanation to rebut the presumption of fact raised by the possession that they were either the robbers or a guilty receivers; the record shows that PW4andPW8 offered an explanation as to how they came into contact with the mobile phone; as for the 1st appellant his explanation was that he had been framed by PW4 because a woman had labelled him as an informer; the trial court in its judgment found that 1st appellant never cross-examined PW4 on this aspect and also found that this explanation was devoid of logic;

67. In the circumstances this court is satisfied that the trial court properly applied the doctrine of recent possession; and the only reasonable inference to draw was that the 1st appellant was one of the robbers; his conviction is found to be safe.

68. As for the 2nd appellant the stolen mobile phone make Nokia E75 (P Exhibit 6) was recovered in his possession on the 28/11/2009; the phone was recovered by PW15upon being led by the 1st accused (David Nandala Simiyu) to the house of the 2nd appellant; his explanation was that he used the phone without worrying because a co-accused one Simon Gwandaru who had escaped from custody had pledged it to him for the sum of Kshs.2000/= which he said he needed to get his wife discharged from hospital.

69. The mobile phone was stolen on the 10/11/2009 and recovered in the 2nd appellant’s possession on 28/11/2009; the time lapse from the time the mobile phone was stolen to the time it was recovered in the appellants possession translates to 17 days, and from the nature of the item and the circumstances of the case this period is found to be ‘recent’; and the mobile data records demonstrated that the 2nd appellant’s number was inserted in the phone shortly after the robbery and that there was communication between him and one of the co-accused who had escaped from custody and was still at large; in short the 2nd appellant was found in actual possession and there were no co-existing circumstances pointing to any other person as having been in possession of the said mobile phone within that window period;

70. As for the recovered wrist watch (P Exhibit 12) when PW15arrested the 2nd appellant, he told him that he had a watch which he had bought for Kshs 900/- and that he had taken it for repair to remove quarry dust; he led the officer to PW3 where the watch was recovered; PW3’s evidence was that the wrist watch had been brought to him on the 9/12/2009 which translates to one month after the incident; that the 2nd appellant had wanted the watch’s strap shortened; due to the nature of the item there was no evidence that the item had been in any other person’s possession within that period;

71. The mobile phone was positively identified by the deceased’s family by the serial numbers on the phone matching the ones on the box; as for the watch it was also positively identified by the family through familiarity and usage; the 2nd appellant when called upon to rebut the presumption of the fact that he was either a robber or a guilty receiver, his explanation was that the phone had been pledged to him by the escapee for a loan of Kshs 2000/= to discharge the wife from hospital; as for the watch his explanation was that he had bought it for Kshs 900/=;

72. The trial court did not accept the explanation and doubted its credibility; it found no logic as to how a phone valued at Kshs.50,000/= could be pledged as security for a paltry sum of Kshs.2000/= as for the wrist watch the trial court doubted how a Seiko 5 wristwatch could be worth 900/=; this court also finds the explanation offered to be far from satisfactory and it is found to be an afterthought; the 2nd appellant did not produce any evidence to authenticate that the pledge was real; the data records also indicate that after the robbery the 2nd appellant was the only person who used the phone; the 2nd appellant had a duty to offer a reasonable explanation as to how he came into possession of the stolen phone; having failed to do so the only plausible inference to draw was that he was one of the robbers;

73. This court is satisfied that the trial court properly applied the doctrine of recent possession; and the only reasonable inference to draw was that 2nd appellant was one of the robbers; his conviction is found to be safe.

74. Lastly is the 3rd appellant’s case; he submitted that none of the stolen items ‘P Exhibit 9 ‘ and ‘P. Exhibit 10’ were recovered in his possession; PW15stated that the items were recovered from PW5and not from the 3rd appellant; PW5 a watchman at a bar and lodging stated in evidence that the 3rd appellant had left the items with him on the 13/11/2009 which translates to two (2) days from the date of the incident; which is found to be ‘recent’; and his possession was constructive;

75. The 3rd appellant when called upon to offer his explanation to rebut the presumption firstly contended that the items recovered were video machines and not decoders; but whether there video machines or decoders the fact is that the family positively identified the items vide the serial numbers which were found to match; his other explanation was that the escapee David Nandala Simiyu had left him with the decoders when he was drunk and he had to leave them with PW5; he alluded to another person, a driver, being present when David Nandala Simiyu left him with the decoders; but he failed to call the said driver as his witness to corroborate and buttress his claim; therefore the only plausible inference that can be drawn is that he was one of the robbers;

76. This court is satisfied that the trial court properly applied the doctrine of recent possession; and the only reasonable inference to be drawn was that 3rd appellant was one of the robbers; his conviction is found to be safe;

77. This ground of appeal is found lacking and is hereby disallowed; the court is satisfied that the trial court properly invoked the doctrine of recent possession; and the convictions are all found to be safe.

Whether to resentence the appellants

78. The trial court having found the appellants guilty convicted the appellants on counts 1 and Counts II and gave them the mandatory death sentence as prescribed by Section 296(2) of the Penal Code; the Supreme Court decision in Francis Karioko Muruatetu and Another v Republic SC Petition No.16 of 2015held that the mandatory sentence is unconstitutional as it deprives the trial court of its legitimate jurisdiction to exercise its discretion to impose an appropriate sentence;

79. In the spirit of this decision this court finds that the death sentence imposed herein by the trial court to be unconstitutional and also an inappropriate sentence for the a forgoing reasons; therefore in re-sentencing the appellants and in determining the appropriateness of the sentence this court has taken into consideration that there was a life lost due to the wounds inflicted by the appellants and hence they are undeserving of a term sentence; and will instead set aside the death sentence and substitute it with a life sentence for each of the appellants;

FINDINGS

80. In the light of the forgoing this court makes the following findings;

(i) The court finds that the prosecution proved its case to the desired threshold;

(ii) This court finds that the doctrine of recent possession was properly invoked by the trial court; and finds the convictions to be safe;

(iii) This court finds that this is a suitable case for re-sentencing.

DETERMINATION

81. The appeals are partially successful only on the issue of sentencing;

82. The convictions are all hereby upheld; the sentences are all hereby set aside

83. and substituted with a life sentence for each of the appellants.

It is so ordered.

Dated, Signed and Delivered at Nyeri this 27th day of June, 2019.

HON. A. MSHILA

JUDGE