[1998] KEHC 50 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Appeal 312 & 313 of 1997

DISMAS RATIEL OKUMU ..............................................................................APPELLANT VERSUS REPUBLIC ................................................................................................... RESPONDENT

CONSOLIDATED WITH CRIMINAL APPEAL NO. 313 OF 1997

SALIM SAID OMAR......................................................................................... APPELLANT VERSUS REPUBLIC.................................................................................................... RESPONDENT

(From Original Conviction in Criminal Case No.453 of 1996 ofthe Snr. Principal Magistrate's Court at Mombasa - Mr. J.S.Kaburu, SPM)

JUDGEMENT

The two appellants were jointly charged with the offenceof robbery with violence contrary to S.296(2) of the PenalCode. It was stated that on 22-11-95 at Kiembeni in MombasaDistrict within Coast Province they jointly with others notbefore court while armed with a pistol robbed Lumumba food ofhis motor vehicle Reg. No. Chassis No.Ull-00518 Engine No.066112 Nissan Blue Bird valued at 350,000/- and at orimmediately before or immediately after the time of suchrobbery used actual violence against the Said Lumumba Sued.

They were found guilty by J.S. Kaburu, Snr. Principal2Magistrate and sentenced to death on 16-10-97. PW.l Lumumba Mohamed Sued, a car dealer from Kampala Uganda, was testdriving a new vehicle towards Kiembeni on that day at about 10a.m when an unregistered vehicle with two occupants blockedhim. Two people jumped out of it one carrying a pistol. Theyordered him to remove whatever he had in the pockets, orderedthe second occupant to lie on the ground and drove off withthe car. Mohamed Sued and his companion reported this at theBamburi Police Station. Later the vehicle was recovered. Hecould not identify whoever attacked him and none was injured.PW.2, IP No.21229,Mohamed Dido said they recovered thevehicle on 29-12-96 at Bondeni Area. PW.3 Dorcas TabithaWendo reiterated what PW.l said showing how the robbery wascommitted. PW.4 Bernard Amadi said someone sought to sell tohim a motor vehicle but at the trial he pointed at a wrongperson as that person. PW.5 P.C. JOHN KAMAU stated how theyarrested appellants one and two on 27-12-95 after a chase onfoot and found the appellant SAID OMAR, accused No.2 with abiretta pistol loaded with three live ammunition. They alsorecovered two firearms a beratta No.22560, and Cart PistolNo.96311 loaded with 5 rounds of ammunition. The two stoodon either side of the complainant and on Dismass RatinOkumu's waist. PW.6 P.C. ISAAC ABDI ALI corroborated whatP.C. Kamau PW.5 said about what happened when they accostedOkumu and Omar. He found while chasing the appellants a paperbag which was carried by the appellants on the ground floor3table of the hotel. They found a Number and printed car plate Number KAE 325 H, but the witness recalled that it was a number of a vehicle that was circulated as stolen. He received two pistols from Okumu.

It is worth noting here that the evidence of PW.6No. 55252 P.C. Isaack Abdi Ali, was not challenged in crossexamination by the two counsel . PW7 investigated the case.It is his evidence that connected the theft of the car inquestion with the two appellants. His evidence was recordedthat on 25-12-95 he took Salim 2nd accused to Kibokoni tocheck on a car. Salim took him to the car and pointed it tothe witness. The car had Registration No.KAE 676 S and thekey accused had opened the car door and started the Engine ofthe same car. Police records identified the car to be the onerobbed PW.l was robbed of on 22-11-95 and that same numberbelonged to the stolen car from the complainant.

In defence the first accused denied knowledge ofeverything connected with the case in his unsworn statement.So was accused No.2 . When PW.2 I.P. Mohamed Dido was re-called on 6-10-97 to court he said in his cross examinationthat accused led him to the recovery of the car and insistingthat he recovered the key from the second accused and that theaccused let him to the place where the car was parked. Healso identified the car key he said accused handed over to him.

S.31 of the evidence Act Cap 80 deals with the matter where information from an accused has led to the discovery of a fact. It says:-S:31.

"Notwithstanding the provisions of sections 26, 28and 29 (of the Evidence Act) when any fact isdeposed to as discovered in consequence ofinformation received from a person accused of anoffence, so much of such information whether itamounts to a confession or not, as relatesdistinctly to the fact thereby discovered, may beproved."

Even had this been the stolen car, and the appellant led thepolice to it, it cannot be said that it was a confession byhim that he stole the car.

In discussing this section SHERIDAN J. in R. v. MWACHARUWACHARU [1923]9(KLR 98 said

"The section means that the fact that while information leading to a discovery may when lookedupon as a whole amount to a confession of guilt,nevertheless such part of it as leads to the act ofdiscovery may be given in evidence so far as it

proves corroborative circumstances. "The words of the section are sufficiently clear to allow ofevidence of such statement being given and it is amatter for the court to sift whether in all thecircumstances of the case the evidence is true orfalse. In short it is a matter of weight"

The appellant denied this so that if it were to be aconfession then it, is a retracted one, but in this case itnever reached that stage and we would bestow no much weight onit as proof of appellants guilt without further corroborativeevidence. On this evidence however the learned PrincipalMagistrate found that the appellants led Dida to the recoveredcar. He found that one of the appellants had the car key thatstarted the car they had. led their captors to, and the saidcar turned out to be the one that had been earlier on stolen.The learned Magistrate said that one appellant must have beentaken to know that the other was carrying the key. He foundthat they were the same people who robbed the complainant ofhis car and therefore convicted them of robbery withviolence.

The appellants appealed separately against the convictionbut their appeals were consolidated and heard together.

For the original accused.No.1 Dismas Ratiel Okumu, therewere four grounds of appeal against the decision of thePrincipal Magistrate. 1st that the learned Magistrate erredin law and fact in convicting the appellant against the weightof evidence.

Secondly, that the Learned Magistrate erred in fact andlaw in finding that the appellant was found in jointpossession of the key with the original 2nd accused.

Thirdly, that the Learned Magistrate erred in law andfact in finding that the appellant was involved in the commission of the offence he was charged with.

Fourthly, against sentence.

Mr. Gakuhi learned counsel for the appellant arguedgrounds 1 and 2 together and his main submissions were thatthe appellant was not identified as one of the robbers neitherwas there evidence that he led the police to the recovery ofthe motor vehicle alleged to have been stolen and that it wasa misdirection on the magistrate's part to find that appellantNo.l also led the police to the stolen motor vehicle , andlastly that the key was not produced in evidence. He saidthat the full ingredients of the offence were not shown asviolence was not proved.

The second appellant Salim Said Omar had six grounds ofappeal but his learned advocate Mr. Wameyo argued grounds 3and 5 and these stated that the learned Magistrate erred inlaw and fact in holding that the appellant had possessed thekey of motor vehicle whereas the same key was never producedin court, and ground 5 stated that the learned Magistrateerred in law and fact in relying on circumstantialuncorroborated evidence without first warning himself of thedangers of relying on such evidence. Mr. Wameyo who arguedthe appeal strongly attacked the learned Magistrate's findingin relation to the key, saying there was no evidence that itwas ever found on the appellant No.2 neither was it producedin evidence by PW.2. He said there was no evidence connectingappellant No.2 with the key. He said this was not a confession as it is required under S.25 of the Evidence At.

On Ground 4 he said that long period had lapsed between the time of the offence and that of the arrest.

The State Counsel Mr. Ng'eno did not support the conviction. In this case the learned magistrate seemed to have relied on the principle of recent possession which states that if someone is found in possession of goods soon after they have been missed and he fails to give credible explanation of the manner in which he came by them the court may infer that he was either the thief or he was handling them with knowledge that they are stolen.

The learned Magistrate regarded the key as such,apparently but he [did not establish in evidence if the key wasfound on the appellants or not. The key itself was notproduced in evidence. In this omission the learned magistrateoverlooked a very important piece of evidence which served toconnect the stolen vehicle with the action of the appellants,and therefore misdirected himself in finding that the two knewthat the motor vehicle was a stolen one.

Asregards the leading of the police to the stolen car,this is pertinent evidence against the second appellant, butthere, was no evidence that first appellant also led the policeto the scene of the stolen vehicle. As for the secondappellant, there is uncontroverted evidence that he led thepolice to the stolen, vehicle, but again when looked at in totality, this evidence can only be used to support the theoryas to recent possession, and we have stated our view on this.Yet a month had passed by and neither was it established thatat the time the police were actually looking for the stolencar.It was always in the possession of accused.

This evidence was unsafe to convict on looked at intotality, and it appears to us, that the charges ought well tohave been against possession of the car and differently of thekey.

As the state does not support the convictions, we also are of the same opinion and so we quash the conviction of robbery with violence against both the appellant and set aside the sentence of death imposed on them and set them at liberty unless they are otherwise lawfully held.

Delivered this 4th Day of Sept.1998.

A.I. HAYANGA JUDGE

P.N. WAKl JUDGE