[2006] KECA 305 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL AT NAKURU

Criminal Appeal194 of 2000

DISMUS OUMA OMUSUGU………………….…...............................…………..APPELLANT

VERSUS

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

(From Original conviction and sentence in Criminal

Case No.1880/99 of the Chief Magistrate’s Court at

Nakuru - S. Muketi (Mrs), S.R.M.

JUDGMENT OF THE COURT

The appellant was charged with 10 Counts of Robbery with Violence contrary to Section 296(2) of the Penal Code. After a full hearing he was found guilty as charged in Counts 1,2,4,5,7 & 9 and was convicted accordingly and thereafter given the mandatory death sentence.

The Appellant being dissatisfied with the conviction and sentence appealed before this court and put forward the following grounds of appeal:-

Ø That the Learned Magistrate erred and misdirected herself when she made a finding that the Appellant was found in possession of stolen goods and in;

Ø Finding that the sweater the Appellant was wearing linked him with the robbery.

Ø That there was insufficient evidence upon which the conviction was based and the identification parade was not carried out in accordance with the law.

The Prosecution case was that the Appellant who was in the company of others not before the court on the night of 22nd/23rd day of October, 1999, at Kabazi Trading Centre in Nakuru District of the Rift Valley Province while armed with dangerous weapons namely pangas and rungus, broke into several houses, beat up the several complainants and stole from them several items as stated in the charge Sheet.

Evidence was adduced by the prosecution witnesses who were mainly the complainants and the arresting Police Officers. After the spate of robberies was reported to the Police station PW.10 gave evidence of how they arrested the Appellant who was travelling in a public vehicle on the morning of 23/10/99, at 6. 00 a.m. Following the reports of robberies, they mounted road patrols and were stopping and inspecting the vehicles along Nyahururu to Nakuru road. They stopped a matatu Pickup and when they searched it they found the Appellant and two other suspects who later tried to escape from lawful custody and were shot dead. They were carrying big bags and when they searched them they found radios, albums, and many materials. The Appellants were arrested and when the complainants went to the Police Station they were able to identify the items as those which were stolen on the material night. The Appellant and the other two suspects attempted to escape from the police custody and the other two were shot dead and thus the Appellant was also charged with the offence of attempting to escape from lawful custody. When put on his defence, the Appellant stated that he lived in Nakuru Bondeni Estate and on the material day he said had boarded a passenger vehicle and when it got on the road-block he was arrested alongside other people who were found with the stolen items. He testified that later he and two others were shot by Police in cold blood. He denied having any knowledge of the offence.

In convicting the Appellant the learned trial Magistrate stated inter-alia:-

“The 100% recovery of the stolen items in theopinion of the Court shows that the accused andthe two others were the actual robbers. Had theybeen harmless then the actual robbers wouldhave retained some of the stolen items. Thedoctrine of recent possession applies in this case.The red sweater exhibit No.3 was identified byPW9, Leah Wangina as belonging to her. Allthe witnesses were emphatic as to how theAccused was seen wearing this apparently female sweater. He had it even at the timeof the arrest. In the opinion of the Court thiswas evidence linking the accused to the offence.

The Court is of the opinion that the Accusedwas not an innocent passenger and if he wasan innocent passenger then what businessdid he have wearing a sweater that had beenstolen? If he was innocent too, he would nothave made an attempt to escape from lawfulcustody. His conduct was therefore not consistent with innocence.

Though under no obligation to prove anythinghis defence did not cast any doubt on theprosecution evidence. His confession had itbeen the only evidence would not have been abasis of a conviction since it is not detailed. Inthe light of the corroboratory evidence like thatof recovery the Court is of the opinion that theoffence has been proved. The assailants weremore than 2 and they were armed. The court isof the opinion that all the ingredients of the offencehave been proved.”

On the issue of identification, several complainants namely, PW4,

PW5, PW7 who were the victims of the robbery on the material day were able to identify the Appellant as one of the robbers who was wearing a red-sweater. Leah Wangina, PW9 was able to identify the sweater the Appellant was wearing as her own. She had taken it to the tailor for repair and it was stolen on the same night.

We are satisfied that the Magistrate properly considered the principles of the doctrine of recent possession and admitted the evidence of identification properly. When the Appellant was seen in possession of a red-sweater which was stolen the same night, a strong presumption arose which in our considered opinion linked the Appellant to the robbery.

Thus as was decided in the case ofMwachanje & 2 Others Vs Republic, High Court Mombasa [ 2002] 2KLR page 341.

“where an accused is found in recentpossession of goods alleged to have beenstolen, he is under an obligation to explainhow he came into such possession and thatsuch possession is innocent. Failure to doso leads to the inescapable conclusion thathe is a thief or robber.”

Besides being in possession of the stolen items, the Appellant was positively identified by three complainants as being one of the three robbers who had terrorised them and robbed them of their items. They identified him at the police station. The Appellant was in the company of two or more others during the robbery and we are satisfied that the Learned Magistrate properly accepted evidence of PW4, PW5 and PW7 on identification The Appellant was easily identified as he was wearing a red female sweater.

We have considered all the grounds of appeal as against the totality of the evidence. We are of the opinion that the Learned Magistrate came to the correct conclusion in respect of the evidence on record.

We find no merit in this appeal and the same is dismissed.

Judgment read and Signed on 3rd March, 2006.

MARTHA KOOME

JUDGE

3RD MARCH, 2006.

D.K. MUSINGA

JUDGE

3RD MARCH, 2006