[2018] KEHC 4247 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO 32 OF 2017

GEORGE MWANIKI KAMAU...................................................................APPELLANT

VERSUS

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

(From original conviction and sentence in Criminal Case Number 564 of 2012 in the Chief Magistrate’s Court at Limuru by Hon N. Makau (RM) on 11th December 2014)

JUDGMENT

INTRODUCTION

1. The Appellant herein, George Mwaniki Kamau, was jointly charged with Michael Njuguna Marenye (hereinafter referred to as his Co-Accused person) on four (4) counts. In Count I, they were charged with for the offence of stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code Cap 63 (Laws of Kenya). The particulars of this charge were that on the nights of 5th and 6th of July 2013 at Kiremara Farm Riara Ridge Limuru in Kiambu County, jointly with another not before court, they stole 100 KVA Transformer Serial No 1248878 (hereinafter referred to as “the Transformer”) valued at Kshs 750,000/= the property of Kenya Power and Lighting Company (KPLC).

2. The alternative charge of Count I was the offence of handling stolen property contrary to Section 322 (2) of the Penal Code. The particulars of this offence were that on the aforesaid date, time and place, jointly with another not before court, they stole the Transformer valued at Kshs 750,000/= the property of KPLC.

3. In Count II, they were charged with sabotage contrary to Section 343 (a) of the Penal Code. The particulars of this charge ­were that on the aforesaid date, time and place jointly with another not before court, they willfully and unlawfully destroyed one Transformer knowing that such act would impair the supply of electricity to the community of Riara Ridge.

4. In Count III, they were charged with stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code. The particulars of this offence­were that on the aforesaid date, time and place, jointly with another not before court, they stole a donkey cart valued at Kshs 10,000/= (Ten thousand only) the property of Joseph Mburu Mwangi.

5. In Count IV, they were charged with vandalism contrary to Section 64 (4) of the Energy Act No 12 of 2006. The particulars of this offence­were that on the aforesaid date, time and place, jointly with another not before court, they willfully and unlawfully vandalised the said Transformer, the property of Kenya Power License.

6. The Learned Trial Magistrate, Hon N. Makau, Resident Magistrate, convicted the Appellant on Counts I, II and IV. He acquitted them on Count III. He also acquitted the Appellant’s Co-Accused Counts I and II but convicted him on Count IV.

7. Being dissatisfied with the said judgment, the Appellant filed a Petition of Appeal. The same was not stamped making it difficult for this to know when the same was filed. Be that as it may, the same bore a date and case file of 2016 implying that the Petition of Appeal was filed outside the stipulated fourteen (14) days from the date of judgment for filing the Appeal herein.

8. However, as the Presiding Judge High Court of Kenya Kiambu admitted his Appeal for hearing, this court took the view that the said Judge must have considered an application whereby the Appellant sought leave to file his Appeal out of time which application may not have been on the court file at the time of writing this decision. It was on that basis that this court deemed it fit to determine the Appeal herein on merit as opposed to referring it back to the Presiding Judge of the High Court of Kenya Kiambu to confirm whether or not there was such an application that was allowed.

9. The Appellant filed Grounds of Appeal and Written Submissions on 22nd March 2018. He relied on nine (9) Grounds of Appeal. When the matter came up for hearing on 22nd March 2018, the State submitted orally in court whereupon this court reserved its judgment.

LEGAL ANALYSIS

10. As this is a first appeal, this court analysed and re-evaluated the evidence afresh in line with the holding in the case of ­Odhiambo vs Republic Cr App No 280 of 2004 (2005) 1 KLRwhere the Court of Appeal held that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanor”.

11. Having looked at the Appellant’s and State’s Written Submissions, it appeared to this court that the issues that had been placed before it for determination were:-

1. Whether or not the Prosecution proved its case beyond reasonable doubt;

2. Whether or not the sentence that were meted upon the Appellant ought to have run concurrently.

12. The court therefore dealt with the said issues under the distinct and separate heads shown herein below.

I. PROOF OF THE PROSECUTION’S CASE

13. Amended Ground of Appeal Nos (1), (2), (3), (4), (5), (6), (7) and (9) were dealt with together as they were all related.

14. The Appellant submitted that he was not properly identified because the incident was said to have occurred at 2. 30 am and that PW 1, whose name did not appear in the typed proceedings but was indicated as George Kehonda in the handwritten proceedings, said that he identified him for the first time in the dock. He pointed out that PW 1 also testified that he saw him when he was first arrested.

15. He added that Joseph Kariuki Kuria (hereinafter referred to as “PW 2”) told the Trial Court that he was alone guarding the Kencell Booster which was facing the Transformer when at about 2. 30 am, lights went off and the generator for the Boosters came on immediately. He stated that when the lights came back, PW 2 said that he crawled and went to seek help from his colleagues and that when they came back, they saw many people and two (2) people having been arrested.

16. He questioned if there were other impending circumstances that could have impaired PW 2’s vision in identifying the arrested people. He added that if there was sufficient light, then Sergeant Duncan Mwangi (hereinafter referred to as “PW 5”) ought not to have used torches. He also contended that PW 5 contradicted himself on the number of people who ran away.

17. His argument was that his case was based on circumstantial evidence and relied on the case of Abanga Onyango vs Republic Criminal Appeal No 32 of 1990where the Court of Appeal held as follows:-

“It is settled law that when a case rests entirely on circumstantial evidence, must satisfy three tests:-

i. The circumstances from which an inference of guilt is sought to be drawn must cogently and firmly established.

ii. Those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused.

iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

18. He contended that the chain of events was broken and hence PW 2’s evidence was not adding up. He pointed out that apart from PW 2 and PW 5, none of the witnesses explained the mode and exact place of his arrest and that in any event, PW 1 and PW 2 contradicted each other on whether they were together.

19. He was emphatic that dock evidence was worthless if not preceded by an identification parade as was held in the cases of Criminal Appeal No 140 of 2000 Peter Mwangi Mungai vs Republic and Criminal Appeal No 93 of 1993 Owen Kimotho Kiarie vs Republic(unreported) and several others that he placed reliance on.

20. It was therefore his submission that the Learned Trial Magistrate ignored the yawning gaps and inconsistencies relating to his identification and argued that the Prosecution did not demonstrate whether or not there was sufficient light.

21. On its part, the State submitted that the Appellant was properly identified at the scene of the incident where he was arrested.

22. A perusal of the proceedings shows that on the material date, time and place, PW 1 was with another guard called Boniface Munyao at Kirimera Farm when PW 2 ran to where they were and informed them that there were people on top of the Booster removing the Transformer. PW 1 said that Police officers were called and after about twenty (20) minutes, they heard gunshots. They ran towards where the gunshots had been fired and on reaching there, they found the police having arrested two (2) men. One was tall and the other was short. He identified the Appellant in the dock. He confirmed having seen a hacksaw, hammer, rope, spanners, nails, metal bars and a spot light at the scene and that they went with the arrested persons to Kabarani AP Camp to record statements.

23. PW 2 corroborated PW 1’s evidence on how the Appellant came to be arrested and added that he saw the Appellant when he was arrested at the scene.

24. No 233781 Inspector Johnson Kuria (hereinafter referred to as “PW 4”), submitted in evidence, photographs of the Transformer that was removed from the Booster.

25. PW 5 confirmed having seen the Appellant at the scene because he had a torch. He said that he also saw the tools that were to be used to remove the Transformer. He was emphatic that when they arrived at the scene, they found five (5) people removing a transformer and when they shot in the air, three (3) of them ran away leaving the Appellant and his Co-Accused at the scene.

26. Simon Mugambi Erika (hereinafter referred to as “PW 6”) was a Technician with KPLC. He confirmed having been called at the scene and having seen the damaged Transformer valued at Kshs 750,000/= and an assortment of tools that were used to remove it. No 65721 Corporal Joel Chepgeno (hereinafter referred to as “PW 7”) also confirmed having gone to the scene on the material night and seeing the Appellant at the scene.

27. In his unsworn evidence, the Appellant testified that he used to sell flowers and that PW 5 had been framed with the offences. He stated that on the material date he was going to Kibro farm at 6. 30 am when he met PW 5 in a KPLC vehicle. PW 5 then slapped him and told him to enter the vehicle. He attributed the grudge between him to sale of flowers.

28. This court carefully considered the evidence that was adduced by the Prosecution witnesses and the Appellant herein and found that there could not have been a case of mistaken identity as the Appellant was arrested at the scene of the incident. The evidence of the Prosecution witnesses was cogent, consistent and credible.

29. The Appellant’s submissions that where a party fails to call certain evidence, a presumption can be made that such evidence was unfavourable to such a party as was held in the case of Criminal Appeal No 28 of 2013 Wilson Odida Opiyo vs Republicwas not applicable in the circumstances of the case herein as he was caught red-handed at the scene of the crime together with his Co-Accused person.

30. Indeed, there was no need for an Identification Parade for the reason that he was arrested at the scene of the offence and he was seen and positively identified by the Prosecution witnesses. The mode and time of his arrest were unambiguous. It was not shaky or sketchy as he wanted this court to believe. His case was not based on circumstantial evidence as he had contended. Rather, it was based on direct evidence, which is more weighty than circumstantial evidence.

31. This court noted that PW 1 accompanied the Appellant and his Co-Accused to record statements at the police station. That was enough and adequate time for him to have carefully looked at the Appellant sufficient to have recognised him in the dock. PW 5 also had a torch and was able to see the faces of the Appellant and his Co-Accused person. There were therefore no contradictions that would have persuaded this court to find that the Appellant had not been properly identified.

32. It was thus not necessary for the Prosecution to have called seventeen (17) witnesses as the Appellant had contended because under Section 143 of the Evidence Act Cap 80 (Laws of Kenya), the prosecution has the discretion to decide the number of witnesses to prove a particular fact.

33. Accordingly, having weighed the Prosecution’s evidence vis-à-vis the Appellant’s unsworn evidence, which largely appeared to have been a submission, and which had little or no probative value because it was unsworn, this court came to the firm conclusion that the Prosecution proved its case against him to the required standard, which was, proof beyond and reasonable doubt and that the Learned Trial Magistrate arrived at a correct conclusion when he convicted him on the facts of the case.

34. In the premises foregoing, this court found Amended Ground of Appeal Nos (1) (2), (3), (4), (5), (6), (7) and (9) not to have been merited and the same are hereby dismissed.

II. SENTENCE

35. Ground of Appeal No (8) was dealt with under this head. Notably, the Appellant did not submit on the same. However, the State argued that the sentences that were meted upon him by the Learned Trial Magistrate were lenient.

36. As was rightly pointed out, the Learned Trial Magistrate sentenced the Appellant to two (2) years imprisonment on Count I, five (5) years imprisonment on Count II and referred the matter to Hon. G.H Oduor the Senior Principal Magistrate to sentence him as she did not have jurisdiction to mete out the stipulated sentence. The said Hon. G.H. Oduor fined the Appellant a fine of Kshs 1,000,000/= and in default to serve five (5) years imprisonment.

37. Evidently, the offences the Appellant was said to have committed were on the same date and time. It appeared to this court that the Appellant and his accomplices had not managed to remove the Transformer from the scene. The charge of stealing did not therefore appear to have been appropriate. Indeed, stealing connotes the taking of another’s property without the intention of returning it.

38. Section 268 (1) of the Penal Code states as follows:-

“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.”

39. It was therefore the considered view of this court that the Learned Trial Magistrate erred when he convicted the Appellant on the charge of stealing as the same was not supported by any evidence that was adduced in court.

40. Turning to the charge of sabotage, the offence connotes the willful destruction of property with an intention of incapacitating or causing hardship or danger to another.

41. Section 343 (a) of the Penal Code states as follows:-

“If the offence is committed with intent to endanger life or with the knowledge that it is likely to endanger life, is liable to imprisonment for life”.

42. The offence of vandalism suggests destruction of property without having the willful intention of incapacitating another.

43. Section 64 (4) of the Energy Act states as follows:-

“A person who willfully or with intent to interfere with the management oroperation of the apparatus of a licensee-

(a) Extinguishes or causes to be extinguished, any public lamps;

(b) Vandalizes or damages any works of or under the control of a licensee;

(c) Steals or, with intent to steal, break, throws down or damages any works of or under the control of a licensee; or

(d) Steals, illegally trades or improperly uses any of the electrical energy supplied by a licensee,

Commits an offence, and shall be liable, on conviction, to a fine of not less than five million shillings or to imprisonment for a term of not less than ten years, or both.”

44. Taking the facts of this case into consideration, in the mind of this court, the offences of sabotage and vandalism appeared to have been the more appropriate offences. As both offences entailed destruction of property which impaired the supply of electricity to the community of Riara Ridge, this court was of the considered view that Count II and Count IV could be sustained herein.

45. Bearing in mind that the Trial Court had the discretion of fining the Appellant Kshs 5,000,000/= and sentencing him to ten (10) years imprisonment on Count IV, this court agreed with the State that the sentence that was imposed on him was more lenient. It is important to point out that as the Trial Court imposed a fine on him, the sentence could only run consecutively.

46. In Section 28 (1) (c) (i) of the Penal Code, it is provided as follows:-

“In the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion-

(i) Direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; (emphasis court).

47. In the premises foregoing, this court did not find any merit in Ground of Appeal No (8) and the same is hereby dismissed.

DISPOSITION

48. For the foregoing reasons, the upshot of this court decision was that the Appellants Appeal was not merited and the same is hereby dismissed. Instead, this court hereby affirms the conviction and the sentence that was meted upon the Appellant herein in respect of Count II and IV as they were both lawful and fitting. For the avoidance of doubt, the sentences shall run consecutively.

49. However, as this court found that the Prosecution did not prove Count I, against the Appellant herein, the conviction is hereby quashed and the sentence of two (2) years imprisonment is hereby set aside as they were both not lawful and fitting.

50. It is so ordered.

DATED at NAIROBI this 28th day of July 2018

J. KAMAU

JUDGE

READ, DELIVERED and SIGNED at KIAMBU this 31st day of July 2018

C. MEOLI

JUDGE