[2017] KEHC 6462 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL APPEAL NO. 71 OF 2014

(Being an Appeal from Original Conviction and Sentence in Criminal Case No. 272 of 2013 of the Chief Magistrate’s Court at Naivasha – E. Kimilu, Ag. PM)

DAVID MUGO NJENGA….…….………………….……………………….……...APPELLANT

-VERSUS-

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

J U D G M E N T

1. The Appellant herein was arraigned before the trial court for the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. In that on the 3rd day of February 2013 at [particulars withheld] staff quarters, in [particulars withheld]of Naivasha Municipality within Nakuru County, while armed with a dangerous weapon namely sword, he robbedI M(aka J W M) of cash Kshs 1,850/=, mobile phone Nokia 2626 all valued at Kshs 5,850/= and immediately before and after the time of such robbery threatened to use actual violence on the said person. He denied the charge and was represented by Mr. P. K. Njuguna.

2. At the termination of the trial the Appellant was found guilty, convicted and sentenced to death. Dissatisfied with the outcome, the Appellant filed an appeal to this court.

3. The prosecution case at the trial was as follows. The complainant I M (aka J W M) (PW1)was a teacher at [particulars withheld]. At the material time, she resided at the school quarters with her infant child. The quarters were constructed out of iron sheets (mabati) and had earthen floor. On the night of 3/2/2013 PW1 retired for the night, but was severally disturbed starting at 10. 00pm, by what sounded like scratching noises against the mabati wall.

4. Believing the sound emanated from rats, she eventually slept, but at 2. 00am she was rudely woken up by the presence of light in the room. Also her blanket covering was pulled off. She was ordered by an intruder to be quiet or be killed. The intruder pressed on her throat while ordering her to undress. He welded a panga. The complainant pleaded with the intruder for dear life and offered to give him whatever he wanted.

5. The intruder then demanded for money. She gave him Shs 1,850/= from her suit case. He also took her mobile phone make Nokia model 2626. PW1returned to bed as ordered by the intruder, who proceeded to rummage through the house in search for valuables. Finding nothing, he returned to the bed demanding of the complainant to undress. He was tagging at her trouser. Again the complainant pleaded with him. Her infant child, woken up by the commotion was crying, and eventually the intruder left.

6. PW1 got up and ascertained that the intruder had dug a hole next to the mabati wall to gain entry. Believing there was nobody in the house, she took her baby to flee, only for the intruder to demand she opens the door or he would enter again through the same route. She opened the door and rushed out with the baby only to be confronted with the intruder. He attempted to detain her and raised his hand to cut her with the panga. She managed to flee while shouting thief! thief! At the local shopping centre she found persons to whom she described the robber. The members of public were soon joined by CPL Mohammed Isaack (PW2) and another officer from Moi Ndabi Administration Police Post close to the school. They visited the robbery scene and noted the hole in the wall.

7. The description of the robber given by the complainant led police and members of public to the Appellant’s home on the same night. They found the Appellant in his room and recovered a panga and also the complainant’s Nokia 2626mobile phone hidden under the mattress. He was arrested and escorted to the trading centre where PW1 identified him and her recovered phone. Further search efforts at the vicinity of the scene for the money were unsuccessful. The Appellant was escorted to Kongoni Police Station. While he was being searched before being placed in cells, the sum of Kshs 1,850/= was recovered in his inner clothes. The Appellant was subsequently charged.

8. In his defence, the Appellant gave a sworn statement. To the effect that, he was a welder normally resident at Kasarani, Naivasha but had recently relocated to Moi-Ndabi for a job with Civicon Company. That while he slept in his house on the material night, a group of persons came knocking at about 4. 30am. He refused to open, advising the visitors to return on the next day. They left, but returned after 30 minutes. He opened the door and police officers entered. They conducted a search, questioned and took him away. He was searched and kept at the cells at the Administration Police Post.

9. At 6. 30am he was taken to a shop at the trading centre. A lady came out of a shop and observed him before going back. He was escorted to Kongoni Police Station where a second body search was conducted. He denied robbing the complainant or that he had Shs 1,850/= on his person on arrest or that the complainant’s phone was recovered from his house.

10. The Appellant has raised four amended grounds of appeal as follows:-

“1. The learned trial magistrate erred both in law and fact in failing to note that the circumstances and conditions described prevailing at the locus quo were not conducive to warrant a positive identification.

2. The learned trial magistrate erred both in law and fact in failing to note that the mode of Appellant’s arrest was erroneous as the members of public who allegedly arrested the Appellant together with PW2 were not availed to corroborate his evidence and that no descriptions of the Appellant had been given to PW2 prior to the arrest raising eyeblows on the arrest as he did not know the Appellant.

3. The learned trial magistrate erred both in law and fact in erroneously invoking the doctrine of recent possession yet failed to note that the evidence adduced did not satisfy the burden of proof.

4. The learned that trial magistrate erred in law and fact in evaluating the prosecution case in isolation of the defence case and in failing to note that the prosecution was duty bond pursuant to Section 309 of the Criminal Procedure Code to discharge the defence raised by the Appellant.” (sic)

11. The Appellant filed lengthy written submissions in support of his grounds. Ground 1 and 2, as expected, challenge the identification evidence byPW1. Emphasising that the offence occurred at night, and the conditions obtaining during the offence, the Appellant has argued that the conditions were not conducive to a positive identification of the robber by the complainant. He cited the well known decisions of Maitanyi -Vs- Republic (1986) 1 KAR 75 andAbdullah bin Wendo -Vs- Republic (1953) EACA 166.

12. He also challenged the invocation of the doctrine of the recent possession in his case. Relying on the case of Erick Otieno Arum -Vs- Republic [2006] eKLR, the Appellant takes issue with the evidence of recovery of the phone and cash from him, for lack of corroboration by way of corresponding inventory or OB record or other evidence. Regarding the identification by the complainant of the recovered phone, the Appellant contended that the complainant did not satisfactorily demonstrate it was her property. (see Samuel Mwangi Macharia & 2 others -Vs- Republic [2015] eKLR).

13. Further that the said phone, marked MFI 1was not produced as an exhibit. He pointed out that there were discrepancies in the serial numbers of the currency notes tendered in court as PW1’s recovered cash with the details in the Police Occurrence Book (OB). Finally, he complained that the trial court erred by shifting the burden of proof to the Appellant having first accepted the evidence by the prosecution.

14. Through Miss Waweru, the Director of Public Prosecutions opposed the appeal. Reiterating the evidence of the complainant, she stated that the Appellant remained long enough in the complainant’s house and came close to her while attempting to rape her; that the robber used phone light and the complainant’s torch while in her house aiding visibility and therefore identification.

15. That her description of his physical appearance aided police and members of the public to trace the Appellant in his house where he was found, covered in dust on the head and a sword recovered together with the money and phone stolen from the complainant. That the recovery evidence on this score corroborated the complainant’s evidence. She asserted that the doctrine of recent possession was rightly applied as the recovered phone was positively identified to be the property of the complainant through inscribed initials and personal identification number (PIN). And that despite the further recovery of the money on him the Appellant did not offer an explanation for the possession.

16. The first appellate court is obligated to review the trial evidence afresh and to draw its own conclusions. In Pandya -Vs- Republic [1957] EA 336the Court of Appeal stated that:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

17. Evidently, the prosecution case rested on the identification of the Appellant and the recovery of goods said to have been violently taken from PW1 in the course of the robbery. The trial court in its judgment was rightly cautious while dealing with the first question. and the learned magistrate sought and found legal guidance in the case of Wamunga-Vs- Republic, [1989] KLR 424 where the Court of Appeal exhorted:

“Where the only evidence against a defendant is evidence of identification on recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that circumstances of identification were favourable and free from possibility of error before court can safely make it a basis of a conviction.”

18. The learned magistrate proceeded to state in her judgment that:

“The complainant did state that she encountered her attacker face to face as he attempted to rape her. He had lit a torch and there was sufficient light to identify Accused person. He went and came back and as he was bending ransacking her clothes and books, boxes looking for valuable he had lit the torch. She uncovered herself and could see him clearly.”

19. In the case ofAbdullah bin Wendo -Vs- Republic (1953) EACA 166which has been cited by the Appellant, the Court of Appeal gave enduring guidance in respect of identification of offenders by witnesses in difficult circumstances, stating interalia that:-

“Subject to well known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

20. The identification by a single, witness of a suspect at night always presents difficulty and the court must test it with utmost care to exclude the possibility of error. In this case, PW1gave a detailed account of her encounter with the robber stating interalia that:

“The blanket was pulled off and I was held by my neck tightly ……the robber was also holding a panga. He took my torch and lit it……he asked me to give all the money I had. (He) let me alight from the bed to get the money. It took the suit case near him to get to see his face but he would pull (push) my face down. There was torch light. Eventually I got money out of the suit case and gave him. I saw his face clearly. It was Kshs 1850/=…….in the denomination of one thousand note, one five hundred note, one two hundred note and three fifty shillings note. After (taking cash) he started to move but back holding my torch and my mobile phone make Nokia 2626……I obeyed (his order) and got back to the bed…… I opened the blanket slightly. He kept on opening the suitcases and boxes looking for money……scattering everything down…… He came back to me telling me to remove my clothes. I was struggling with him not to remove my trouser……. I decided to run and took of shouting thief, thief. There was a shopping centre near the school like 200 – 300 metres. I found people at the centre and explained to them what had happened. I tried to describe the robber who I had seen as short young man with thin face. He had worn stripped T-Shirt…… had folded his trouser and not wearing shoes. When I found him outside (on second occasion) he was wearing a jumper and lined trouser…..the person who robbed me is now in court (Accused in dock). I had seen him twice within that week when taking my baby for day care. I would see him on the way but he was a new face to me. I spent like one hour with him in my house.”

PW1 was not shaken during cross-examination by the Appellant’s counsel.

21. Pausing there, the Appellant was not a stranger to the Complainant and she was brought close to him in the course of the robbery. It is believable that to enable PW1 to look for money in the suitcase and to receive it, the Appellant must have turned the on the torch. The complainant said she drew close to the Appellant while searching the suit case, hoping to see his face. Fearing the proximity, he pushed her face downwards as she searched the suitcase. The light must also have remained on to enable the robber subsequently ransack the house and thereafter returning to make another attempt to rape the complainant. After all, he was not familiar with the house of the complainant. The whole episode took one hour, according to PW1.

22. According to PW2, the complainant described the attacker to members of public. He said:

“We got a tip off from members of the public after (complainant) described the robber’s area. (possibly in reference to where she had see him previously).

23. As the Appellant confirmed in his defence, he resisted opening the door when there was a knock 4. 40am. The police unfortunately did not retrieve and tender in court the striped T-shirt allegedly found in the Appellant’s house and whichPW1referred to as part of the robber’s apparel in the course of the robbery. PW2 said the Appellant’s father was roused from sleep led police to the Appellant’s house, and persuaded him to open. From the evidence given by PW2, it is evident that out of information and the description given by PW1, as pieced together with tips by members of public, the Appellant and his home were identified.

24. I do not, reviewing the evidence of PW1 andPW2 accept that the former was mistaken or that the tracing of the Appellant on the night of the robbery resulted from guess work. Not only did the complainant describe the face of the Appellant but also his dressing and residence which was on the face of it adequate to give first leads to the police officers.

25. The complainant’s torch being source of light in the house was evidently sufficient to enable the search for money and the robber’s further rummaging in search of valuables. In addition, the complainant having come close, almost or face to face with the robber and taken time (1 hour) with him, could not be mistaken about his identity. Besides, this was a case of recognition, the complainant having severally seen the Appellant previously. In Anjononi –Vs- Republic [1980] KLR 59:-

“……recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because, it depends upon the personal knowledge of the assailants in some form or other”.

26. Any doubts regarding the said identification were settled by the recovery of the phone in the house of the Appellant. PW2 was consistent on the recovery, confirmed by PW1 who was shown the phone by police within hours of the robbery. It is true as the Appellant argued that the complainant did not tender receipts to prove her ownership of the phone, but neither did the Appellant claim it as his own. Contrary to the Appellant’s assertion, PW1showed and read out the inscription of her initials “MWJ”on the phone representing her nameM W Jduring evidence. The Appellant seemed to suggest that police may have “planted” the phone and Shs 1,850/= on him. That sounds farfetched, especially within the short span of hours since the robbery at PW1’s.

27. While I have reservations regarding the recovery of the money, in light of the discrepancies in the Occurrence Book (OB) (it seemed that actual notes were exchanged with others at the police station), I do not think the evidence on the stealing, recovery and identification of the phone on the same night can be assailed.

28. It is most unlikely that police blindly went in search of an innocent man and fabricated, within hours, evidence against him to connect him with the offence. Rather, reviewing the evidence in light of the Appellant’s defence, it appears believable thatPW1 not only properly identified him but also subsequently described him sufficiently enough for the Appellant to be traced. And that on the same night the stolen phone was found hidden in his room. Further it is not true as the Appellant submitted, that the phone was not produced as an exhibit at the trial. It was produced byPC Ndegwa (PW3)and marked Exhibit 1.

29. Considering the succession of events described by credible witnesses in relation to the material night, the Appellant’s denials could not be true. Once proof was tendered regarding the Appellant’s possession of the phone only hours after the same was taken forcefully and with violence fromPW1, the burden shifted to the Appellant to give an explanation.

30. In the case of Ogembo -Vs- Republic, [2003]1 EA the court stated regarding evidence of possession of recently stolen property:

“For the doctrine of possession of recently stolen property to apply, possession by the appellant of the stolen goods must be proved and that the appellant knew the property was stolen.”

Recently, this Court in Moses Maiku Wepukhulu & PAUL NAMBUYE NABWERA -Versus- Republic CR.A NO. 278 OF 2005(Koome, Mwera & Otieno-Odek, JJ.A.) quoted with the approval what constitutes the doctrine of recent possession in the case of Malingi -Versus- Republic, [1989] KLR 225:

“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 has 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 the 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 items.”[Emphasis added]

The doctrine is a rebuttable presumption of fact. Accordingly, the accused is called upon to offer an explanation in rebuttal, which if he fails to do, an inference is drawn, that he either stole or was a guilty receiver.

As was aptly stated in the case of Hassan -Versus- Republic, (2005) 2 KLR 151:

“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 a receiver.”(See also Malingi -Versus- Republic, [1989] KLR 225).

31. The Appellant did not offer any rebuttal of the presumption of fact arising from his possession of the complainant’s phone just hours after she had been robbed of it. The Appellant’s defence was a denial and not an explanation. His complaint that the trial court shifted the burden of proof to the defence holds no water. In my own considered view, the Appellant was convicted upon solid evidence. I do not find any merit in his appeal and will dismiss it accordingly.

Delivered and signed at Naivasha, this16thday ofMarch, 2017.

In the presence of:-

For the DPP : Mr. Mutinda

For the Appellant : N/A

C/C : Barasa

Appellant : Present

C. MEOLI

JUDGE