[2015] KECA 417 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A.)

CRIMINAL APPEAL NO. 120 OF 2014

BETWEEN

DZOMBO NGOKA……………………………………………..…………………….1ST APPELLANT

MZUNGU RUWA KUTA……………………………………………………………..2ND APPELLANT

AND

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

(Appeal from a judgment of the High Court of Kenya at Mombasa (Odero & Nzioka, JJ.) dated 27th April, 2012

in

H.C.CR.A. No.138 of 2009)

**************

JUDGMENT OF THE COURT

In the wee hours of 12th August, 2005, Luvuno Charles Ruwa (PW1) was in a deep slumber in her house in Gandini village of Kwale County when at about 1 a.m., she was rudely awakened by sounds of the door being forced open. The intruders then threw at the door a heavy stone that forced it to cave in. By the time she got out of bed, one of the intruders who was already in the bedroom immediately set upon her with a panga demanding that she parts with money. The same intruder took her to the sitting room where she encountered two other intruders, one inside the sitting room and the other standing at the doorstep. The one inside the sitting room was removing some items and giving them to the one at the door. With the aid of the candle and light emanating from the torches that the intruders had. She claimed to have seen them clearly and identified, nay recognized them. They were the appellants. It was the 1st appellant who had accosted her in the bedroom whereas the 2nd appellant was the one standing at the door. The one picking the goods and handing them over was also known to her but soon thereafter he passed on and was never arrested and charged. Apparently, he had a bright torch and every time he handed over the items he would flash the torch on the 2nd appellant enabling the witness to see him clearly. The items taken from the sitting room were a radio, television set and solar panel. They also took from PW1 a bag containing Kshs.2000/-. Satisfied with their haul, the intruders left, locking the door from outside. After sometime, PW1 screamed and her son, Ruwa who was sleeping in a different house came and opened the door for her. During the incident she recognized both appellants as they were related to her. Whereas the 1st appellant was married to her husband’s sister, the 2nd appellant was a brother to her husband.

The following day when she reported the incident to the local chief, Harrison Manga Bekanga (PW6) she gave out the names of the appellants. Thereafter, she proceeded to Kinango Police Station to lodge a report of the incident. She was received thereat by PC Benard Wamocho to whom she gave the name of the 2nd appellant as having been part of the gang that raided and robbed her. This done, she called her husband, Philip Mwaruwa Zuma (PW2) who was away at Miritini nursing his ailing father and relayed the information regarding the robbery. She also mentioned to him that the two appellants were part of the gang.

With his information, PW2 and PW6 mobilized the community policing vigilante led by Rashid Mwero Chindiro (PW3) to hunt down the appellants as they were well known to them. They all came from the same village. Earlier on, PW3 had responded to the screams by PW1 following the robbery and rushed to the scene. However, by the time he got there, the appellants had completed their mission and left. Together with the other members of the public who had responded, they pursued the appellants using their footprints. 20 or 30 metres from the house, PW3 stumbled upon a pouch and on opening it, amongst other items, found a National Identity Card belonging to the 2nd appellant. However, they were unable to catch up with the appellants who made good their escape.

In no time, PW3 and PW6 came by information that the 2nd appellant had been sighted in Likoni. PW3 proceeded to Likoni and had him arrested. Again, information filtered in that the 1st appellant was at Miritini. PW2 in the company of PW3 and police officers from Kinango Police Station proceeded there and caused him to be arrested. Upon interrogation, the 1st appellant volunteered to lead PW2, PW3 and PW4 to the person to whom the items stolen during the robbery had been sold. They ended up in the house of Pastor Peter Ndirangu in Jomvu Mombasa from whom they recovered the radio, television and the solar panel with the Pastor claiming that the items had been sold to him by the 1st appellant for Kshs.7,700/-. He had already paid Kshs.5,500/- leaving a balance of Kshs.2,000/- to be paid later. The items were positively identified by PW1 and PW2 as the items stolen from their house and produced purchase receipts to buttress their ownership.

Based on the evidence so far collected, the appellants were arraigned before the Principal Magistrate’s Court at Kwale with a co- accused, one Rumba Kamanzadeceased. However, for purposes of this appeal, his role or lack of it in the commission of the offence is immaterial. That said, the two faced one count of robbery with violence contrary to Section 296(2) of the Penal Code on the grounds that on 12th August, 2005 at about 1 a.m. at Gandini village of Kwale County whilst armed with pangas and rungus jointly robbed PW1 of a handbag, 2 bed covers, books, television set, radio cassette, solar panel and Kshs.2,500/- cash, all valued at Kshs.50,000/- and at or immediately thereafter used actual violence on her.

The appellants entered a plea of not guilty and their trial commenced in earnest. In defending themselves, the 1st appellant in an unsworn statement claimed that he was arrested from a mnazi club at which the local chief demanded a Kshs.500/- bribe and when he failed to abide, he was ferried to Kinango Police Station and charged with an offence he knew nothing about. He did not know the 2nd appellant.

As for the 2nd appellant, again in unsworn statement of defence similarly claimed that he was arrested by the local chief on account of his failure to pay a debt due to one Kulala Ramadan for which he had left with the chief his National Identity Card as security. He denied knowing the 1st appellant or participating in the crime.

Having heard and considered the evidence of both the prosecution as well as the defence, Hon. Ogembo D.O., learned Senior Resident Magistrate was convinced that the prosecution had proved its case against the appellants as required by law, convicted them and subsequently sentenced them to death.

On appeal, Oderoand Nzioka, JJ. found that the appellants had been properly convicted by the trial court, dismissed the appeal and upheld the conviction and sentence.

The appellants were undeterred. They, on 29th October, 2014, lodged a second and perhaps last appeal to this Court on grounds that were similar. They challenged the evidence of identification by recognition, insufficiency of the evidence tendered by the prosecution in general, failure to call some crucial witnesses, their manner of arrest, the shifting of the burden of proof to them and failure to consider their respective defences.

At the hearing of the appeal on 14th July, 2015, the appellants were represented by Tukero Ole Kina, learned counsel who opted to argue the appeal on three main broad grounds; identification, doctrine of recent possession and the evaluation of evidence. On the first ground, he submitted that there was no evidence of the intensity of the light from the testimony of PW1. That though she claimed that she had a candle, the intensity of the light emitted by the candle and even the torches that the appellants were alleged to have had was not interrogated. It was therefore doubtful whether there was sufficient light to enable PW1 identify the appellants. Counsel further submitted that, though PW1 claimed to have known the appellants, there was no evidence as to how she recognized them. That PW1 did not take first opportunity to name the appellants to the first respondent.

That much as the 2nd appellant’s identity card was found at the scene, PW1 did not however confirm that she was attacked by the 2nd appellant. That though the trial court believed the evidence of PW1 on identification on account of vigorous cross –examination that she withstood during the trial, that was a none issue as what mattered was whether the conditions obtaining at the scene were favourable for positive identification,. On the whole question of identification, counsel relied on the case of Maitanyi v Republic [1986] KLR 198 and Ernest Shiemi & Another v Republic [2013] eKLR.

On the doctrine of recent possession, counsel submitted that the appellants were arrested at different times. That by the time the property was recovered in October, 2005 the 1st appellant had been in custody from 13th September, 2005, thus he could not have been involved in the disclosure of the whereabouts of the stolen goods. That the recovery was allegedly triggered by the confession to the chief by one of the appellants. That, that evidence was inadmissible and of little probative value. Counsel further submitted that Pastor Ndirangu from whom the items were recovered never testified. The appellants were on account of the illegally acquired evidence thus not found in possession of the stolen goods. Finally, counsel submitted that the 2nd appellant had offered a plausible explanation as to the presence of his National Identity Card at the scene of crime. On the applicability of the doctrine of recent possession to the circumstances of this case, counsel relied on the case of Erick Otieno Arum v Republic [2006] eKLR.

In opposing the appeal, Mr. Monda, learned Assistant Director of Public Prosecutions, submitted that the two courts below properly evaluated the evidence before coming to their conclusions. That the evidence of identification was boosted by the evidence of recovery of the stolen goods as well as the identification card found at the scene of crime. Counsel further submitted that this was a case of recognition as opposed to visual identification of strangers; and that the Judges of the High Court properly dealt with the issue and had regard to the case of Anjononi v Republic [1980] KLR 59. That though Pastor Ndirangu did not testify, the fact was not lost to the Judges and they dealt with it exhaustively in their judgment. Accordingly, no adverse inference ought to be drawn by that failure. It was further submitted by counsel that the manner in which the stolen goods were recovered in no way violated the laws of this country. It was not illegal and the appellants were in any event raising the issue for the first time in this appeal. It was counsel’s view that the conditions obtaining at the scene of crime were favourable for positive recognition of the appellants.

On the doctrine of recent possession, it was counsel’s submission that it was properly invoked in the circumstances of the case. The High Court too dealt with it in its judgment. In totality, counsel submitted the evidence tendered by the prosecution placed the appellants squarely at the scene of crime.

This is a second appeal. By dint of the provisions of Section 361 (1) (a) of the Criminal Procedure Code, ours is not to consider matters of fact unless we are persuaded that the first appellate court and the Principal Magistrate’s Court failed to consider matters they should have considered or considered matters they should not have considered or that looking at their decision as a whole, it was plainly wrong in which case such matters cease to be matters of fact and become matters of law. It is in the light of this that we propose to consider this appeal.

Although counsel for the appellant had indicated that he would urge three broad ground in this appeal to wit, identification, doctrine of recent possession and lastly, evaluation of evidence, he ended up only urging the first two grounds. However, in so doing, he touched alittle bit as well on the evaluation of evidence by the two courts below. We consider the two grounds that the appellant vigorously argued before us to be matters of law thereby attracting our jurisdiction.

The law is now sufficiently settled on the standard of care that the court needs to exercise before relying on and convicting an accused person on the evidence of visual identification or even of recognition even though identification by recognition is said to be more assuring than identification of a stranger by a single witness particularly under difficult circumstances like at night. Of course, this is not to say that a conviction cannot be entered in such circumstances but there is need for extra care and absolute guarantee that the witness is not mistaken, truthful and reliable. Reiterating the above, this Court albeit in the case of Wamunga v Republic [1989] KLR 424 had this to say:-

“……Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification…”

See also Maitanyi and Ernest Shiemi (supra).

To this we must add the warning that, recognition may be more reliable than identification of a stranger; but even when a witness is purporting to recognize someone whom he knows, the court must caution itself that mistakes in recognition are often made even with regard to close relatives and friends. See the speech of Widgery C.J. in the celebrated case of Turnbull [1976] 3ALL E.R 549.

The two courts below were of the concurrent opinion that PW1 was able to recognize the appellants courtesy of the candle light as well as light from the torches that the appellants were shinning at each other as they looked for the items to take and when the same were passed to the 2nd appellant at the doorstep. If we heard the appellants properly, their main complaint was that both courts did not interrogate the intensity of the light emitted by the candle as well as the torches as per the guidelines in Maitanyi (supra). This complaint no doubt is valid. Under the said guidelines, the trial and 1st appellate courts should have interrogated the question of the light available at the scene of crime. As stated in Maitanyi:

“It is at least essential to ascertain the nature of the light available. What sort of light, its size, and it (sic) position relative to the suspect, are all important matters helping to test the evidence with greatest care. It is not a careful test if none of these matters are known because they were not inquired into…”

The court went on to hold that failure to undertake such an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction.

This is how the trial court handled the issue.

“…she went on that the first man had a torch and panga she identified him as accused 3 by the light from the candle and his own torch that he flashed around. She also identified accused 1 as the one who was at the door and receiving the items being removed from inside the house, again, by flashings of the torch held by the 2nd men (sic) who was removing the items from the house………she confirmed that she managed to identify them by the lit candle (accused 3) and torches (accused 1 and 3). I must say I found the evidence of this witness to be consistent, truthful and remained unchallenged despite te (sic) vigorous cross -examination by counsel for the accuseds…..”

Where in all these has the trial court interrogated the intensity of the light emitted by either the candle or the torches? Was the light bright or feeble? Ordinarily candles do not emit bright light. Where has the trial court determined the source of the respective lights vis a vis or in relation to the appellants and PW1? From which angle did PW1 see the appellants? How big was the house or even the rooms? Neither was there an examination of how long the respective lights were directed at the appellants to enable her see them sufficiently to be able to recognize them. Similarly there was no examination of her state of mind at the time. Was she for instance, in fright or composed. Obviously, if frightened, that state of mind would interfere with her perception.

The High Court did not fare any better. This is what it said

“……..The complainant gave a very detailed account of the events of that night. She was also able to describe clearly the role played by each appellant in the robbery. The robbers were removing items from her house and passing them to each other outside. To aid this, they were flashing their torch between one to the other as the items were being passed. This enabled the complainant to have a good view of the men. The incident took some period of time. The complainant was in the company of the robbers all this time and she also spoke to them. All this granted her ample opportunity to see and identity them….”

The comments we have already made with regard to the interrogation of the light available at the scene of the crime by the trial court apply equally to the treatment of such evidence by the High Court.

We have no doubt at all in our minds that had this been the only evidence upon which the appellants were convicted, we might have had no hesitation whatsoever in allowing the appeal. The possibility that the appellants could have been victims of mistaken identity or recognition was not wholly eliminated. After all, PW1 and PW2 had been victims of the 2nd appellant’s unsavoury ways earlier. He had on two occasions stolen from them a solar panel and a goat. Hence the possibility that these two witnesses could have rushed to the conclusion that it was the same appellant again cannot easily be wished away.

Besides the discredited evidence of recognition, there was however, other evidence that placed the appellants at the scene of crime. On the same night that the robbery was committed, PW3 in the company of other members of public attempted to pursue the appellants using their footprints. They had not gone far when PW3 stumbled on a pouch whose contents included the National Identity Card of the 2nd appellant. The 2nd appellant did not deny that the National Identity Card was his. He disputed, however that it was found at the scene of the crime. As far as he was concerned he had surrendered it to PW6 as security for the money he owed to one Kulala Ramadan.

The evidence on record however seems to discount this defence. First and foremost, if that was the case, then the identity card could not have been found in the pouch. Two, it would have been in the physical custody of the chief and not PW3 who found it the previous night whilst on the appellants’ trail. The 2nd appellant did not even raise the issue with either PW3 or PW6 in his cross –examination. Lastly, the 2nd appellant has not suggested that PW4 and PW6 came up with a scheme to frame him with the case using his Identity Card.

Then there was evidence that upon his arrest and interrogation, the 1st appellant volunteered to show the police where the stolen items were sold. Indeed, he led PW2, PW3 and PW4 to the house of Pastor Ndirangu from whom they recovered the radio, solar panel and a television. Pastor Ndirangu confirmed to them that indeed the 1st appellant had sold him the items. These items were all positively identified by both PW1 and PW2 as the items stolen from their house during the robbery by way of documentation. The 1st appellant did not seriously challenge this evidence either in cross –examination of the witnesses or in his defence.

Before us, the 1st appellant has sought to distance himself from this evidence on account of it having been illegally obtained and that he could not have been in possession of the goods since by the time of their recovery, he was already in police custody. For the same reason he could not have led the police to their recovery. According to the 1st appellant, the recovery of the goods was triggered by his alleged confession to the chief as to the whereabouts of the goods. To the said appellant, the alleged confession was inadmissible in evidence and anything done pursuant to that confession was an illegality. First and foremost, we do not think that there was any confession as understood in law. Two, the trial court did not rely on such evidence of the alleged confession to convict the appellants. Three, even if there was such confession, it remained with PW6. PW6 never participated in the search and eventual recovery of the items and lastly, the 1st appellant never brought up the issue in cross -examination of witnesses or in his defence though he had services of counsel. Accordingly, we reject this submission.

With regard to the second argument, it is true that by the time the items were recovered, the 1st appellant was indeed in police custody. It is also true that at the time, he could not have been in physical custody of the items. However, for the doctrine of recent possession to be invoked, it is not absolutely necessary that the accused must be in physical possession of the stolen items. Possession can either be physical or constructive. Constructive possession would apply for instance where an accused has the stolen items but which he has hidden somewhere and therefore are not readily available on his person or even his house. However, if he is able to lead to their recovery from where he had hidden them, he is deemed to be in possession albeit constructively.

The High Court appreciated that the 1st appellant was not found in physical possession of any of the stolen goods but made a finding that he led the police to the house of Pastor Ndirangu from where the stolen items were recovered and from that fact concluded that the appellant had a hand in the robbery. We do not see how we can interfere with that summation.

Further, by the definition of possession in Section 4 of the Penal Code, a person who is not in personal possession is nevertheless deemed to be in possession if he knowingly has anything in the actual possession or custody of any other person or if he has anything in any place (whether or not occupied by him) for his use or benefit or for use and benefit of any other person. The High Court made a correct inference given the foregoing that the 1st appellant was still in possession of the goods. The two courts were therefore right in invoking the doctrine of recent possession. It matters not the argument by the appellant that having been in police custody by the time the goods were recovered, he could not have led the police to where they were or that he could not therefore have been in their possession. Being in police custody is no bar to leading to the recovery of stolen items. His possession of the items as we have already noted was constructive. Nor does it really matter that Pastor Ndirangu did not testify. His testimony would not have changed the fact that the 1st appellant led the police to his house from where the stolen items were recovered.

It is for all the foregoing reasons that we must dismiss this appeal. It is so ordered.

Dated and delivered at Malindi this 30th day of September, 2015

ASIKE-MAKHANDIA

……………………….

JUDGE OF APPEAL

W. OUKO

……………………….

JUDGE OF APPEAL

K. M’INOTI

……………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR