[2015] KEHC 2334 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO 4 OF 2015

DAVID WAHOME WANJOHI……………………………….….APPELLANT

VERSUS

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

(Appeal against Judgement, sentence and conviction in Criminal case number 853 of 2013, Republic versus David Wahome Wanjohi at Nyeri, delivered W. A. Juma, C.M. delivered on 30. 1.2015).

JUDGEMENT

David Wahome Wanjohi andFrancis Ndungu Murithi were arraigned before the chief Magistrates court at Nyeri on the 20. 11. 2013 where they were charged with the offence of House Breaking contrary to section 304 (1) and stealing contrary to section 279 (b) of the Penal Code.[1]

The particulars of the offence were that on the 17th day of November 2013, at Kahawa Ridge Estate in Nyeri County within the Republic of Kenya, jointly with others not before court broke and entered the dwelling house of Rev. James Githaiga with intent to steal therein and did steal items enumerated in the charge sheet all valued at all valued Ksh. 1,000,000/=

The appellant herein faced an alternative count of handling stolen goods contrary to section 322 (2) of the Penal Code.[2] It was alleged that on the 19th day of November 2013 at Golden Building in Nyeri County within the Republic of Kenya, otherwise than in the course of stealing, dishonestly undertook the retention of one television set flat screen make sony S/No. 7819378 knowing or having reason to believe it to have been stolen goods.

After evaluating the evidence and the law, the learned Magistrate found the appellant herein David Wahome Wanjohi guilty on both counts and sentenced him to serve 18 months on each count both sentences to run concurrently. However the learned Magistrate acquitted the second accused in the said case namely Francis Ndungu Muriithi for lack of evidence. Accordingly, this appeal relates only to the appellant before the court.

In determining this appeal, this court fully understands its duty. The question that naturally follows is what is the duty of this court in considering the appeal before it? This question was answered in the case of Okeno v. R[3] where the court of appeal for East Africa stated the duty of an appellate court on first appeal as follows:-

“An appellant on a first appeal is entitled to expect, the evidence as a whole to be submitted to a fresh and exhaustive examination[4] 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.[5]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 courts 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.[6]”

In other words, the first appellate court must itself weigh conflicting evidence and draw its own conclusions.[7] It is the function of a first appellate court to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and 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.[8]

I now turn to the evidence adduced before the trial. The prosecution called a total of 4witnesses as follows:-

PW1Rev. James Githaiga Kariuki, the complainant testified that on 17. 11. 13, they returned home at around 7. 00am only to find their house had been broken into and the items listed in the charge sheet missing. He reported to the police who commenced investigations immediately. On 19. 11. 13 a person was seen carrying a TV at Nyeri town, the complainant relayed the information and serial number of the TV to PW3 a police officer, and the officer called shortly thereafter and confirmed that the serial number matched the one he gave. He drove to the police station and found the appellant and the TV which he identified. Later on he gave the police information which led to the arrest of the second accused in the lower court. No other recoveries were made.

PW2 a one Patrick Maina Githaiga testified that on 19. 11. 13 he received information that a TV similar to one stolen from his parents has been seen, he proceeded to the scene, he rang the complainant and asked for the serial number but his father instead sent Senior Sgt Sila to the place where the TV had been seen.

PW3 3 Snr. Sgt Abednego Ndonye, attached to Nyeri Police Station was investigating the case. Acting on information from the complainant went to a TV repairer as directed and found the TV in question; upon inquiry he was given the telephone number of the person who delivered it. He called him but said he was in Nairobi. PW3 took the TV to the police station. He arrested both persons.

PW4 Grace Kananu wife to PW1 also explained how they returned home only to find the house had been broken into and items listed in the charge sheet missing. She identified the stolen TV in court.

At the close of the prosecution case the trial magistrate was satisfied that a prima facie case had been established and put both accused persons on their defence. The provisions of section 211 of the Criminal Procedure Code were complied with and the appellant herein opted to give unsworn evidence while the second accused gave sworn evidence.

In his defence, the appellant maintained that he is a TV repairer and that on 19. 11. 2013 his co- accused brought a TV to him, and left his telephone contact. He undertook the required repairs and placed it exactly where other TVs were kept. A police officer came and he furnished him with the customers’ number. That same evening he was arrested and charged with the offence.

After evaluating the prosecution and the defence case, the trial magistrate found the appellant guilty on both counts but could not find sufficient evidence against the second accused, hence he was set free. The appellant was sentenced to 18 months imprisonment on both counts, sentences to run concurrently.

Aggrieved by the said finding, the appellant appealed to this court against the conviction and sentence imposed by the said court and advanced eight grounds enumerated in the memorandum of appeal. I have evaluated the evidence on record; I have carefully considered the submissions by the appellants’ advocates and submissions by the learned state counsel and the relevant law and authorities.

After considering the appellants’ grounds of appeal, I am persuaded that the same can be conveniently reduced into four, namely;

(i) Whether the circumstantial evidence adduced met the necessary legal test;

(ii) Whether the defence advanced by the appellant was considered by the court;

(iii) Whether the prosecution proved the case beyond reasonable doubt;

(iv)Was the learned Magistrate erred in law convicting the appellant on both the main count and the alternative counts?

With regard to number one above, in her judgement, the learned trial magistrate stated that “circumstantial evidence of the events and recovery was no doubts that the finger points directly at the first accused as having participated in the theft”

To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. The evidence used to prove guilt is classified as either direct or circumstantial. Direct evidence, testimony presented, is a statement about a fact constituting a disputed material proposition of a rule of law, while circumstantial evidence is testimony about a fact or facts from which the disputed material proposition may be inferred.[9]

Thus, circumstantial evidence can be defined as relying on certain proved or provable circumstances from which a conclusion can be drawn that it was the accused person who committed the offence.[10] It is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly, typically when a witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are to be considered, but to bring a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty. This follows from the requirement that guilt must be established.

Commonly, three special directions are given in substantially circumstantial cases:-

as to drawing inferences;[11]

that “guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances”[12]

that if there is any reasonable hypothesis consistent with innocence, the court’s duty is to acquit.[13]

The second and third directions stated above are but different ways of conveying, or emphasising the meaning of “beyond reasonable doubt.” Although a conviction will not be upset merely because the evidence is wholly circumstantial, a more rigorous test is generally used to determine whether such evidence is sufficient to convict.

In Abanga alias Onyango vs. Republic, the learned judges of the court of appeal stated the principles which should be applied in order to test circumstantial evidence. They set them out thus:-

“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 guilt of the accused; (iii)the circumstances taken cumulatively, should form 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”

The principles to be applied before basing a conviction on circumstantial evidence were ably discussed in the case of GMI v. Republic[14].These are:-

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 guilt of the accused;

iii. The circumstances taken cumulatively should form 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.

The above principles were reiterated in the case of R. v. Kipkering Arap Koske & Another.[15]In order to ascertain whether or not the exculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilt, we must also consider a further principle set out in the case of Musoke v. R[16]citing with approval Teper v. R[17], thus:-

“It is also necessary before drawing the inference of accused’s guilt from Circumstantial evidence to be sure that there are no other co-existing

Circumstances which would weaken or destroy the inference”

A similar position was held in the case of Paul versus Republic[18] where it was held inter alia that:-

“Where the prosecution relies upon circumstantial evidence to establish the guilt of the accused, the inculpatory facts must be incompatible with the accused’s innocence and incapable of explanation upon any other hypothesis than his guilt.”

In Kariuki Karanja vs Republic[19] it was held that:-

“In order for circumstantial evidence to sustain a conviction it must point irresistibly to the accused and in order to justify the inference of the guilt on such evidence the inculpatory facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving the facts justifying the drawing of that inference is on the prosecution.”

In Sawe vs Republic[20] the court followed the above principles and added that “suspicion however strong cannot provide the basis of inferring guilt which must be proved beyond reasonable doubt.”

The key question that this court seeks to answer is whether or not the appellant offered any other explanation that could exonerate him from the offence or whether there exists any other co-existing circumstances which could weaken or destroy the inference of guilt which is a necessary test before basing a conviction on circumstantial evidence.

The appellant is a TV repairer. This fact was not disputed. He also at the earliest opportunity possible informed the police that a customer brought the TV to him for repair and he went further and provided the telephone contact of the said person who happens to be the second accused whom was acquitted. If this defence came later, possibly it can raise suspicion as being an afterthought, but as stated, it was relayed to the police at the earliest opportunity possible, before arrest and prosecution. I take the strong view that was a reasonable explanation in that he was able to explain how he came into possession of the TV. Indeed there is evidence that a person was seen taking the TV to where it was found (See Evidence of PW1 at page 13 while on cross-examination). That is the information that led to the recovery of the TV. No evidence was tendered to show that the person who was “taking” the TV to the place where it was found was the appellant. Indeed the appellant was good enough to provide the contact of the person who brought the TV to him for repairs. It’s unfortunate the police could not gather more evidence to establish the role played by the second accused or even establish who was this person who was seen carrying the TV I a paper bag.. In my view, this is a case where the court may have acquitted the culprit, possibly due to the poor evidence that was presented and wrongfully convicted the innocent party just because the TV was found in his premises. The explanation given by the appellant was reasonable and in my view meets the test laid down in the above cited cases.

I find that there are serious gaps which in my view weaken or destroy the circumstantial evidence and which make the evidence incompatible with the innocence of the accused person because as explained above, a person was seen carrying the TV to his premises. It was not alleged the appellant was that person who was seen carrying the TV. On the contrary the appellant gave details of the person who brought it. Thus, I find that the possibility of the existence of other co-existing circumstances which could weaken or destroy the inference cannot be ruled out.

I now turn to the question whether the prosecution proved its case beyond reasonable doubt as required under the law and I will combine this with the question whether the defence offered by the appellant was considered by the trial court. And already found above, the circumstantial evidence relied upon was totally unsafe and did not meet the required threshold laid down in the above cases.

The legal burden of proof in criminal cases never leaves the prosecution’s backyard. Viscount Sankey L.C. in the celebrated case of Woolmington vs. DPP[21] in a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that:-

‘Through the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

The above quotation expresses the correct legal position, which is the legal burden of proof in criminal cases rests on the prosecution and this burden must be discharged at all material times. Thus, the legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial the prosecution has failed to establish these to the appropriate standard, the prosecution will lose.[22] It is clear the legal burden of proof in criminal cases is only one and rests on the shoulders of the prosecution.[23] The burden of the prosecution in criminal cases is to establish its case beyond reasonable doubt.[24] The question that follows is whether the prosecution in this case established its case beyond reasonable doubt. This calls for close scrutiny of the evidence on record and also an examination of the defence advanced by the accused. In Uganda vs. Sebyala & Others,[25] the learned Judge citing relevant precedents had this to say:-

“The accused does not have to establish that his alibi is reasonably true. All he has to do is to create doubt as to the strength of the case for the prosecution. When the prosecution case is thin an alibi which is not particularly strong may very well raise doubts”

The appellant was charged with the offence of house breaking and an alternative count of handling stolen property. As for count one, no direct evidence was tendered to link the appellant with the said count. The only evidence adduced is the circumstantial evidence I have dealt with above and the doctrine of recent possession which the learned magistrate apparently relied on when she found that“I find that the case against the accused in the main count is proved beyond any shadow of a doubt, it was beyond merely being found in possession of goods suspecting it to be stolen property”(sic).

The application of the principles of law upon which the doctrine of recent possession is based were laid down in the case of Isaac Ng’ang’a Kahinga alias Peter Ng’ang’a vs Republic.[26] The application of the said principles were ably explained by Bosire J in the case of Malinga vs Republic[27] where he stated 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 have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had 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 circumstances of the case, recent; that there are no-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of the fact is a rebuttable presumption. That is why 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 it or was a guilty receiver”(Emphasis added).

The possession of recently stolen goods will, in the absence of an innocent explanation, support an inference that the possessor knew that they were stolen. The facts on which the inference depends are (1) the possession and (2) the absence of an innocent explanation, and if a person be charged with possession of stolen goods, he is entitled to an acquittal if the court is left with reasonable doubt as to either or both of these facts.[28]

Laidlaw J.A put it more succinctly in the case of R vs O’keefe[29] when he said:-

“It is possession by an accused person of recently stolen goods that constitutes the foundation of a prima facie case against him and creates a presumption of guilt. It is a persuasive presumption which imposes on the accused person a burden of giving an explanation of his possession that might reasonably be true. When such an explanation has been given the burden then continues to rest, as always, on the Crown to prove the guilt of the accused beyond reasonable doubt.”( Emphasis added)

The evidence adduced by the prosecution was that a person was seen carrying the TV to the premises it was recovered. The appellant gave an explanation that he repairs TV’s, that the TV was brought to him for repairs and even gave the cell-phone number of the person who brought it and this led to the arrest of the second accused who was arrested and charged on the basis of that information. To me that is tantamount to co-existing circumstances and indeed the appellant offered a reasonable explanation thereby rebutting the said presumption. If the police could not undertake deeper investigations and unearth the truth, they cannot blame it on the appellant. A prudent alternative was to take time and wait for the customer who would come to collect the TV rather than rushing to make arrests.

I find that the appellant having offered such a reasonable explanation, he rebutted the presumption of recent possession; hence the finding by the Magistrate that the doctrine of recent possession applies in this case was erroneous. Further, the learned magistrate erred by failing to consider the said defence which essentially rebutted the said presumption.

I now address the issue whether the learned Magistrate erred in law in convicting the appellant on both the main count and the alternative count.

From the charge sheet the appellant faced the main count as outlined earlier in this judgement and an alternative count of handling stolen goods. At page53 i.e J9of the judgement, the learned Magistrate stated:-

“I find that the case against the first accused is (sic) in the main count is proved beyond any shadow of a doubt, it was beyond merely being found in possession of goods suspecting it to be stolen property. I find the first accused person guilty in the main count and he is convicted accordingly under section 215 of the criminal procedure code.”

Clearly, the above finding only relates to count one. But at page 54 of the record (i.e. J10), the learned magistrate sentenced the appellant to 18 months imprisonment for each count. Both sentences are to run concurrently. Evidently, in the body of the judgement there is no finding on the alternative count. One wonders where and how the 18 years imprisonment sentence was arrived at for the alternative count since there was no finding on it in the judgement. To me, that is a serious mistake that is highly prejudicial to the accused person and vitiates the entire sentence.

Even assuming that there was a finding on both the main count and the alternative count, the act of convicting and sentencing the appellant on both the main count and the alternative count was erroneous as was held in the case of Peter Mutua vs Republic.[30]

In my view when charges are framed in the main and alternative, the accused has an election to either plead guilty to the main count or alternative count. He can plead not guilty to both counts as the appellant did in this case, and be found not guilty on both the main count and the alternative BUT he may not be found guilty on both counts. Thus, where charges are preferred against an accused person in the alternative, a conviction should be entered on one only and that no finding should be entered on the alternative count. In Republic vs Nasa Ginners Ltd,[31] the magistrate convicted the accused on one count and acquitted him on the alternative. It was held that a more proper course would have been to make no finding on the alternative count.In my view, conviction on both the main count and the alternative count exposes an accused person to being convicted twice in the same case for the same offence.

Accordingly, in view of my findings as outlined in this judgement, I find that the conviction and sentence imposed upon the accused by the learned Magistrate was not supported by the evidence adduced and the law and cannot be allowed to stand. I therefore quash the conviction and set aside the said sentence and order that the appellant be forthwith set at liberty unless otherwise lawfully held.

Dated at Nairobi this 1stday of October2015

John M. MativoJudge

[1] Cap 63, Laws of Kenya

[2] Ibid

[3] {1972) E.A, 32at page 36

[4] See Pandya vs Republic {1957}EA 336

[5] See Shantilal M. Ruwala vs Republic {1957} EA 570

[6] See Peter vs Sunday Post {1958}EA 424

[7] Shantilal M. Ruwala V. R (1957) E.A. 570

[8] see Peters V. Sunday Post (1958) E.A. 424

[9] Michael & Adler, The Trial of an Issue of Fact: 1, 34 colum. L. Rev 1224, at 1274 (1934)

[10] Criminal Appeal No. 122 of 2003, Court of Appeal Nairobi

[11] See Jones {1993} 1 QD 676at 680; JRS Forbes, Evidence Law in England, 3rd Edition {1999}

[12] Shepherd {1990} 170 CLR 573 at 578

[13] Supra note 10

[14] [2013] eKLR

[15] 16 EACA 135

[16] [1958] EA 715

[17] [1952] AL 480

[18] {1980} KLR 100

[19] {1986}KLR 190

[20] {2003} KLR 354

[21] {1935} A.C 462 at page 481

[22] See Halsburys’ Laws of England, 4th Edition, Volume 17, paragraphs 13 & 14

[23] See Peter Wafula Juma & others vs REPUBLIC High Court Criminal Appeal no. 144 of 2011

[24] See Republic vs Derrick Waswa Kuloba {2005} eKLR

[25]{1969} EA 204

[26] Criminal Appeal No. 82 of 2004

[27] {1989}KLR 225

[28] See Rex vs Schama & Abramovitch {1914} 11 Cr App R 45

[29] {1958} O.R. 499 ( C.A .)

[30] Criminal Appeal No. 78 of 2012, Machakos

[31] {1955} 22 EACA 434