[2017] KEHC 926 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CRIMINAL APPEAL NO.21 OF 2017

BETWEEN

FELIX OMONDI ONYANGO.......................................... APPELLANT

AND

REPUBLIC.................................................................... RESPONDENT

(Being an appeal from original conviction and sentenceof

the CM'scourt Homa Bay in criminal case No.125 of 2015

dated 17/3/17 – P. Mayova, SRM)

JUDGMENT

1. The appellant (FELIX OMONDI ONYANGO) was convicted on a charge of stealing by servant contrary to Section 281 of the Penal Code and sentenced to serve 4 years imprisonment.

The particulars were that on 24th February 2015, along AWENDO-HOMA BAY ROAD within HOMA BAY COUNTY, being the driver for motor vehicle Registration No. KBZ 822 F Mitsubishi FH belonging to KINAL PATEL, the director of RAY STORES, he stole 360 bales of sugar each weighing 24 kgs valued at Kshs.765,000/= which came into his possession by virtue of his employment. The appellant denied the charge.

2. The appellant was employed as a driver for RAYS STORES LIMITED whose director KINAL M. PATEL (PW1) told the trial court that on 24/02/2015 at around 8. 30 a.m., the appellant was released to collect sugar from SONY Company in AWENDO – this was not the first such assignment.

Between 2. 00 p.m. to 4. 00 p.m., PW1 began looking for the appellant to monitor his progress; but he did not pick the calls.

3. At 5. 00 p.m., PW1's brother ANIL called to ask whether he had sent the motor vehicle to NYAMIRA where it had been spotted. PW1 immediately rushed to the police station to make a report and they began looking for the vehicle. The vehicle was eventually recovered at NYAMIRAin OYUGIS parked by the roadside with the ignition key intact. It had no sugar.

4. The next day, police from AWASI called to say the driver had made a report that he had been carjacked and dumped in a sugar plantation. A receipt from SONY Company confirmed that 360 bales of sugar had been loaded onto the vehicle at 11. 02 a.m., and a gate pass showed that the appellant had left the company with the loaded motor vehicle that very day.

5. PW4 CPL JOSEPH NYAMAIconfirmed receiving a report from PW1 saying the appellant had not returned from his assignment by 5. 00 p.m. and was not picking his calls – which had made him suspicious that something was amiss. Further that the motor vehicle had been sighted in NYAMIRA which was not on its path of assignment. Since the motor vehicle was fitted with a tracking device PW4 was able to track the motor vehicle to NYAMIRA at KERAvillage – it did not have the sugar cargo and the driver was missing. However the key was in the ignition hole.

6. Later police from AWASI called to say the appellant was at their station claiming he had been hijacked and abandoned in a sugar plantation where he spent the night. The police did not believe him – PW4 wondered how the appellant could have made a u-turn after arriving at RONGO weigh bridge to come to Homa Bay yet the weigh bridge was manned by armed police officers.

PW4 also doubted the appellant's claims of having spent the night in the sugar cane plantation because it had rained heavily the previous night yet he was very clean.

7. The scenes of crime officer CPL SHEM ONDIEK MOGAKA (PW2) was called to take photographs of the recovered motor vehicle and photographs of the appellant which showed that he had clean clothes and clean shoes. PW2 stated in cross examination:-

“If you had spent in a plantation for a night when it was raining, the shoes would have been muddy … if the person was dumped in a sugarcane plantation and walked towards the station, the trouser would have been muddy. You told us that the clothes you wore were the same you had the previous day. They should have been wet, muddy with sugarcane remains on the clothes.”

8. In his unsworn defence, the appellant confirmed that he worked for PW1 as a driver and had been sent to buy sugar. However after passing through the weigh bridge at RONGO just as he was looking for a safe place to turn, two people (one armed with a pistol) opened the vehicle's front cabin, got in and ordered him to drive to Kisii. After some time they found a saloon car parked, and he was ordered into the boot and the vehicle drove off with him. Later at night he was released into a sugarcane plantation where he was ordered to sleep. He later got up and walked until he met someone who told him he was near Awasi. He followed the rod to AWASIpolice station where he was locked up. He explained that he had worked for PW1 faithfully over the years and was surprised that the latter could turn against him after the incident.

9. The trial magistrate rejected the appellant's assertion that he was a victim of carjacking for reasons that, as the police had indicated, his shoes and clothes were clean, which did not suggest one who had spent the night in the sugarcane plantation – he referred to images of the appellant in photographs taken by police after he had been collected from AWASIpolice station and said:-

“I agree with the officers that if accused had spent the night in a sugar plantation when it had rained heavily, he would have been muddy and dirty. The photos show a picture of a man who was – very clean and neat the following day. I am convinced beyond reasonable doubt that the accused lied on this issue.”

10. The trial magistrate also doubted the appellant's claims about making a u-turn at the weigh bridge saying the area is manned by armed police officers and there was ample space for one to turn “it therefore beats logic that the accused had to drive towards Kisii to make a turn. That place is very safe. Would thugs wait for him in broad daylight at such a place? It is quite improbable …. the accused schemed carefully to steal from his employer.”

11. The trial magistrate also wondered why the appellant failed to receive calls made to him by PW1; and concluded that it revealed a well planned plot to steal.

12. The appellant contested these findings on ground that the investigating officer never visited AWASI area where he had been abandoned to establish whether indeed it had raised t that location. Further that the failure to call the OCS of AWASIpolice station to testify, rendered the prosecution case a failure.

He also stated that the trial magistrate misdirected himself in finding that the appellant was attached at the weigh bridge, yet the incident occurred NOT at the weighbridge but next to it.

13. The appellant canvassed his appeal by way of written submissions where he urged the court to find that the trial magistrate failed to properly consider his defence and the inadequate investigations conducted could not establish his claim about being carjacked and dumped in a sugarcane plantation. He argued that even the investigating officer admitted that rain may pour in some parts of the county and not get to others, so dismissing his explanation based purely on the fact that his clothes were not muddy or wet, was unreasonable.

14. In conceding the appeal MR. OLUOCH on behalf of the State submitted that the conviction was based in mere suspicion which cannot form a legal basis for conviction.

15. He also pointed out that the investigating officer failed to visit the scene where the appellant claimed to have been abandoned, and it was erroneous for the trial magistrate to take the investigating officer's evidence as gospel truth. He submitted that the trial magistrate ignored the basic criminal law principle that the standard of proof must be beyond reasonable doubt.

16. Two major issues of concern which the trial magistrate failed to address, and which seemed to have been propelled by presumptions are:-

a) The failure by the investigating officer to visit the place where the appellant claimed to have been dumped, and assuming that because the general area of Kisumu and Awasi was wet (as stated by PW2 - the scenes of crime Officer) then it meant even the sugar cane plantation area where the appellant was dumped was wet. The trial magistrate failed to take judicial notice of the fact that it may rain in one place within the same locality, and be completely dry in the next/neighbouring village. It is a geographical fact of nature. Indeed the only way to confirm the observation was for the investigating officer to visit the scene.

It was therefore erroneous to base his findings on observation that because the appellant's clothes and shoes were clean, yet Awasi area had been receiving rain, his claims about being abandoned in the plantation were far-fetched.

b) The trial magistrate dismissed the explanation that the appellant tried to drive a little away from the weigh bridge at Rongo to find a place to turn, saying there is ample space at the weigh bridge and that it was improbable for thugs to laywait at such a safe place which was manned by police officers. Again this was not based in the evidence presented before the court – where did trial magistrate get this? – and the mere fact that armed police are present at a venue is not an assurance of safety, after all I take judicial notice that in Kenya, criminals have attacked even armed police officers and police stations – I think that was an inappropriate premise on which to reject the appellant's defence.

17. Consequently I find that the appeal is properly conceded – the conviction was unsafe and is quashed and sentence be and is hereby set aside.

18. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Delivered and dated this 6th day of November, 2017 at Homa Bay

H.A. OMONDI

JUDGE