[2022] KEHC 11853 (KLR)

Gachenia v Republic (Criminal Appeal 271 of 2019) [2022] KEHC 11853 (KLR) (Crim) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11853 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 271 of 2019

LN Mutende, J

May 5, 2022

Between

Jackson Mwaura Gachenia

Appellant

and

Republic

Respondent

(Being an Appeal arising from the original conviction in Criminal Case No 6246 of 2012 at Chief Magistrates Court Kibera by Hon Ojoo.–SPM on March 4, 2019)

Judgment

1. Jackson Mwaura Gachenia, the appellant, was charged with the offence of conspiracy to commit a felony contrary to section 393 of the Penal Code. Particulars being that on October 18, 2012 at Kenya Bus Depot, Kawangware within Nairobi County, jointly with others not before court conspired to commit a felony namely to steal a motor vehicle registration number KAT 439D make Mitsubishi Bus valued at Kshs 650,000/- (Six Hundred and Fifty Thousand Shillings) the property of Bilha Ngonyo Isaack.

2. In count 2, he faced the offence of stealing a motor vehicle contrary to Section 268 (1) as read with Section 278A of the Penal Code. Particulars being that on October 18, 2012, at Kenya Bus Depot Kawangware within Nairobi County, jointly with others not before court stole a motor vehicle Registration Number KAT 439D make Mitsubishi Bus valued at Kshs 650,000/- (Six Hundred and Fifty Thousand Shillings only) the property of Bilha Ngonyo Isaack.

3. Having been taken through full trial, the appellant was acquitted of the charge in the first Count, but, was convicted of the Second Count and sentenced to pay a fine of Kenya Shillings Three Hundred Thousand (Ksh 300,000/-) and in default to serve three (3) years imprisonment.

4. Aggrieved by both the conviction and sentence, he appeals on grounds that:1. The learned Trial Magistrate erred in both law and fact by finding that the motor-vehicle in question was indeed the property of the complainant PW1 when the prosecution’s evidence clearly showed the contrary.2. The learned Trial Magistrate erred in law in finding that an offence of theft had been established against the Appellant based on facts and circumstances of the case.3. The learned Trial Magistrate erred in both law and fact by failing to find that it was not proved, beyond all reasonable doubt, that the Appellant stole the motor vehicle in question.

5. Facts as presented by the prosecution were that PW1 Bilha Ngonyo Isaack, the complainant, testified to have owned Motor-vehicle Registration No KAT 439 Mitsubishi fighter truck having purchased it from Dickson Njuguna. That she entered into a franchise agreement with Kenya Bus Services (KBS) Ltd through her cousin, Sabina Nyambura that resulted into the Motor-vehicle being enlisted and assigned Fleet No 621. However, the cost of running the motor-vehicle was prohibitive, therefore, it was grounded. Circumstances that prevailed made her decide to sell the motor-vehicle. She approached Enock Mugigwa Laboso who had been jointly charged with the appellant but was acquitted and expressed her intention to sell the motor-vehicle. Enock Laboso notified PW4 Leonard Njoroge Chege of the motor-vehicle that the complainant was selling who put her through to the Appellant.

6. On October 18, 2012 she met the appellant who was in company of a mechanic and another individual. They inspected the motor-vehicle and the appellant paid her Kshs 100,000/- that she required to settle the sum for storage and repairs carried out at the KBS yard, a sum of money that was to be deducted from the purchase price in the sum of Kshs 650,000/=. They went to KRA where documents of ownership were to be verified prior to the full purchase price could be remitted.

7. The appellant introduced her to an individual who took possession of all documents she had in respect of the Motor-vehicle. The process took long therefore they left and in the process the appellant and his friend managed to slip away. The following day the complainant called the appellant who alleged that documents she possessed in respect of the motor -vehicle were fake and that he had caused the motor-vehicle to be towed to Industrial Area Police Station so that the issue could be resolved. She went to the Police Station but did not see the motor-vehicle.

8. It turned out that on the material date, October 18, 2012, at 5. 00 pm , while PW5 Benson Chavanji Abuga was still on duty at the KBS Kawangware Depot, he received a note from Mr Laboso, the supervisor, to issue a gate pass for release of the Bus No 621 from the Depot. He received the gate pass from one Ogutu who was to take the Bus to the owner. Since parking fee had been paid he issued the gate pass.

9. PW6 No 43569 P C John Mwiti investigated the case and found that the appellant and three (3) others conspired to steal the motor-vehicle.

10. Upon being placed on his defence the appellant stated that he learnt of the motor-vehicle that was being sold through his cousin Leonard Njoroge Chege who had spoken to Mr Laboso. Together with his friend Dan and a mechanic they went to see Laboso. Subsequently she met the seller and they haggled over the price and settled at Kshs 650,000/-. Following their agreement he paid Kshs 100,000/- that was to meet expenses incurred by the company. When he asked for the logbook he established that the engine number on the vehicle was not matching with the one on the Logbook. He asked her to go with him to KRA offices to confirm details of the vehicle and she agreed. That they encountered a man at the gate that the complainant wanted them to go with but since his car was small they left him with his mechanic. At KRA he did the enquiries with Dan and it turned out that the logbook the complainant had was fake and there was a copy of another logbook in the name of Francis Thuku and not Dickson Maina. He therefore abandoned the transaction and sought a refund of the money that he had paid and when he asked her to go to the Police Station to book a report she declined and did not co-operate but he went to the Police Station and booked a report. Two (2) weeks later he got a call from a Police Inspector. After six (6) months he was arrested and charged alongside other accused persons.

11. The trial court considered evidence adduced and reached a Finding that though not properly registered, the object in question was a motor-vehicle and hence a thing capable of being stolen. That the appellant made payment to KBS Limited with an intention of having the vehicle released and delivered to the premises of PW4 and subsequently the vehicle was never recovered. That the only person who could explain where the vehicle ended was the applicant’s mechanic. The court dismissed the defence put up that the appellant did not know where the vehicle was. Having colluded with his mechanic the court found him guilty of stealing the motor-vehicle.

12. The appeal was canvassed through written submissions. It was urged for the appellant that the complainant did not prove ownership of the motor-vehicle as the search for the motor- vehicle dated March 28, 2013 showed that the motor-vehicle was owned by Francis Thuku and the receipts at KBS Depot were in the name of Sabina Nyambura a fact proved by the complainant who on cross examination said she took it to KBS Depot in the name of Sabina Nyambura and Dickson Njoroge were not called to support the allegations of PW1.

13. That there was no evidence adduced to prove that the appellant conspired with Mr Ogutu to take the motor-vehicle from KBS Depot.

14. The Respondent opposed the appeal. It urged that the complainant adduced documentary evidence to prove that she purchased the vehicle from Dickson Njuguna a fact confirmed by her Daughter and PW2, a friend. That non registration of the motor-vehicle did not negate the fact that the object was a motor-vehicle. That as correctly found by the court it was only the appellant and his driver Ogutu who knew where the vehicle in question was as it was released following instructions of the appellant.

15. This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of seeing and hearing witnesses who testified. In the case of Okeno vs Republic[1972] EA 32, it was held that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M Ruwala v R [1957] EA 570. It is not the function of a first appellate court mer ely 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 support ed. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v Sunday Post [1958] EA 424”.

16. It was alleged that the appellant, jointly with others not before court stole the motor-vehicle Registration Number KAT 439D make Mitsubishi the property of Bilha Njuguna Isaack.

17. Section 268 (1) of the Penal Code defines stealing thus:A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.

18. The appellant contends that the Motor –vehicle did not belong to the complainant. Evidence adduced showed that the motor- vehicle in issue was not registered in the name of the complainant. What was however not in doubt was the question of the complainant having been in possession of the motor-vehicle and having entered into an arrangement with KBS Ltd through Sabina. PW1 alluded to having purchased the motor-vehicle from one Dickson Njuguna. She was in possession of a logbook in the name of Dickson Njoroge, a sale agreement and transfer document, documents that were stated to have been taken by the appellant.

19. The fact of the complainant having possessed the motor-vehicle is not in dispute. The appellant however argued that when they went to Kenya Revenue Authority (KRA) a search was purportedly carried out and it turned out that the stated motor-vehicle was registered in the name of Francis Thuku. The allegation that the motor-vehicle was registered in a different name was allegedly given by an alleged member of staff from KRA. This information was not adduced in evidence but on cross examination PW6 the Investigation Officer alluded to having conducted a search on records but did not find the name of Dickson Njoroge appearing as the previous owner. That records indicated that the vehicle was owned by Francis Kamau, but no evidence was called from KRA to establish the allegations. There having been no complaint that the complainant obtained the motor-vehicle unlawfully, she was a beneficial owner. Undisputed evidence shows that the complainant had special interest in the property. She therefore had a qualified ownership of the motor-vehicle and hence a special owner. And the motor-vehicle was a thing capable of being stolen.

20. Section 268 (2) of the penal code defines what entails to take something fraudulently. Taking something with the intent to permanently deprive the general or special owner of it is to do so fraudulently.

21. Payments to facilitate release of the motor-vehicle from the Kawangware KBS Depot were made by the appellant through the complainant. At the point of going to view the vehicle, the appellant was with three (3) people who included his mechanic Mr Ogutu. PW4 confirmed that he introduced the appellant to the complainant and the appellant confirmed having paid some money for the release of the motor-vehicle. PW5 confirmed that following instructions from Mr Laboso (appellant’s Co- Accused) the Engineering Supervisor, the motor-vehicle was released to Mr Ogutu the mechanic for the appellant. The vehicle went missing and the appellant’s mechanic who acted following his instructions was never found.

22. In the case of Ahamad Abolfathi Mohammed and Another Vs Republic (2018) eKLR the Court of Appeal had this to state:-“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr App R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

23. Circumstances that existed unerringly pointed at the appellant herein as one of the persons who caused the motor-vehicle to be taken away from the KBS LTD Depot and he was the beneficiary.

24. As a result of the act of the appellant and his mechanic (Mr Ogutu) the complainant was permanently deprived of the Motor-vehicle.

25. Therefore, the trial court did not fall into error when it reached the finding that the appellant stole the Motor-vehicle in question, and I affirm the conviction.

26. On sentence, the fine imposed was Kshs 300,000/- and in default the appellant was to serve three (3) years imprisonment. Section 278A of the Penal Code provides thus:If the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap 403), the offender is liable to imprisonment for seven years.

27. The Penalty Section for the offence does not provide for a fine.But, the trial court opted to impose a fine. This called upon the court to comply with Section 28 (2) of the Penal Code that provides thus:(2)In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—Exceeding Shs 50,000……12 months.

28. In the premises the default sentence should have been one (1) year imprisonment. The Respondent having not sought for enhancement of sentence, the appeal succeeds to that extent following the irregularity.

29. In the circumstances, I set aside the default sentence of three (3) years imprisonment which I substitute with one (1) year imprisonment.

30. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF MAY, 2022. L N MUTENDEJUDGEIN THE PRESENCE OF:Ms Nganga holding brief for Mr Kanyi for AppellantAppellantMs Chege for ODPPCourt Assistant – Mutai