[2017] KEHC 1286 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL APPEAL 151 OF 2014

GEORGE NDICHU NGARUIYA ………. APPELLANT

VERSUS

REPUBLIC…………………....………RESPONDENT

(An appeal arising out of the judgment and sentence of Hon. P. O. Ooko Ag. PM in CriminalCaseNo. 615 of 2013, delivered on 12th August 2014 at the Principal Magistrate’s Court at Mavoko)

JUDGMENT

The Appellant was convicted of the offence of tampering with telecommunication equipment with intent to cause mischief contrary to section 31 of the Kenya Communication Act 1998, and sentenced to a fine of Kshs. five million (5,000,000/-) and in default to serve 10 years imprisonment.

The Appellant had initially been charged with four counts in the trial Court as follows:

Count 1:

The offence of tampering with telecommunication equipment with intent to cause mischief contrary to section 31 of the Kenya Communication Act 1998, the particulars of which were that on 12th June, 2013 at Site estate Athi river District within Machakos County, the Appellant jointly with others not before court tampered with telecommunication cable the property of Telkom Kenya Limited, using a motor vehicle registration number KAG 108G make Mitsubishi Canter.

Count 2:

The offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code. The particulars were that on 12th June, 2013 at Site estate Athi river District within Machakos County, the Appellant jointly with others not before court stole telecommunication cable valued at KShs. 600,000/-, the property of Telkom Kenya Limited.

The Appellant was charged with an alternative charge to count 2 of handling stolen property contrary to section 322 (1) as read with Section 322 of the Penal Code.

Count 3:

The offence of malicious damage to property contrary to section 339 (1) of the Penal Code, the particulars of which were that on 12th June, 2013 at Site estate Athi river District within Machakos County, jointly with others not before court, the Appellant willfully and unlawfully damaged telecommunication cables valued at KShs. 600,000/-, the property of Telkom Kenya Limited.

Count 4 :

The offence of sabotage contrary to section 343 (b) of the Penal Code. The particulars were that on the 12th June, 2013 at Site estate Athi river District within Machakos County, jointly with others not before court, the Appellant willfully and unlawfully damaged telecommunication cable valued at KShs. 600,000/- the property to be used in the service of the Government namely communication, belonging to the Department of Telkom Kenya Limited.

The trial Court in its judgment found that Counts 2, 3 and 4 were duplicates of count 1 and acquitted the Appellant of the said counts. The Appellant is aggrieved by the decision of the trial court and filed this appeal on the following grounds which are set out in Amended Grounds of Appeal that he availed to this Court:

a. That the trial court erred in law and fact in convicting the Appellant on contradictory, inconsistent and malicious evidence.

b. That the trial court erred in holding that the vehicle had no link to the alleged offence.

c. That the prosecution failed to prove its case beyond reasonable doubt.

d. That the trial court erred in law and fact in rejecting his defence of alibi without cogent reason.

The Appellant also availed written submissions wherein it was contended that the Prosecution’s case was marred with contradictions. He stated that it was not clear who had ordered for the recovered items to be offloaded from the vehicle. He contended that the items were not recovered from the lorry as alleged. The Appellant also questioned why the items had to be taken out of the lorry for them to be photographed, and why the scene of crime officer was not called as a witness. On his argument that there was failure to call a crucial witness, the Appellant cited the decision in Martin Ndegwa Kabocho v. Republic [2015] KLR in which the court was of the view that failure to call a crucial witness weakens the prosecution case.

According to the Appellant, the result of the contradictions and inconsistencies in the prosecution case is that the prosecution did not prove its case to the required standards. He also submitted that he provided a graphic account of the material day which the trial court failed to consider, and that the trial magistrate dismissed his defence of alibi thereby shifting the burden of proof to the Appellant. Reliance was placed on the decision in Osiwa v. Republic [1989] eKLRthat the onus of proof lied squarely with the prosecution.

Ms Mogoi Lilian, the learned Prosecution counsel, conceded the appeal in written submissions she filed dated 27th June 2017. It was argued therein that while it emerged from the prosecution evidence that there were three officers on patrol. Only two were called as witnesses. Further, that of the two officers, PW3 testified that on 12th June, 2013, him and his other two colleagues were on duty conducting mobile patrols within Makadara Estate, when their colleague, one PC Theuri, called and informed PW3 that he had been called by a resident of EPZ Estate about some suspected characters who were doing fishy business. However, neither the said PC Theuri nor the said resident who called PC Theuri were called as witnesses to corroborate the evidence of PW3.

The Prosecution further submitted that although PW1 stated that the cables were stolen, he did not visit the scene to confirm that indeed cables were missing from the site as alleged. In addition, that there were contradictions on the evidence of PW2 and PW3 who were the main witnesses, which contradictions created doubt in their testimony and the prosecution case as a whole.

It was averred that PW2 in this regard contradicted himself when he stated that they saw a person directing the driver of the lorry as they approached the scene, and later said that they found the lorry already stalled due to a mechanical problem. In addition, that in PW3’s evidence there was no mention of the lorry being driven. It was the Prosecution’s conclusion that the Appellant’s conviction was thereby not safe.

As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic[1973] EA 32).

The prosecution called three witnesses to prove its case. Police Constable Kenneth Meta (PW2) and Corporal Michael Mboya (PW3) testified that they got a tip off on 12th June, 2013 at about 4. 00 am, that there were people who had been sported around EPZ estate doing fishy business. They headed to the area and as they approached, they saw a lorry registration number KAG 108G reversing. There was someone behind the lorry giving the driver direction. When the man who was giving direction saw them, he ran away.

They also saw some men running from the opposite side of the fence. Knowing that there is a cable laid along that fence they suspected that the men could have been vandalizing the said cable. They headed for the lorry where they found the Appellant, who upon being interrogated indicated that he was coming back from transporting household items for a person who had relocated to that area, when he experienced mechanical break down. That when the Appellant was asked to show the police the house to which he had taken the alleged household items, he was unable to do so.

PW2 and PW3 then checked the rear of the lorry and found broken metal parts and cables belonging to a telecommunication company, a rope, a mattock and a hack saw. The rope was said to have been tied on the rear stair case of the lorry and the other side of the rope was tied to orange telecommunication cable which was underground. The police again inquired if truly the vehicle had a mechanical problem as alleged, and they realized that there was a loose cable underneath the vehicle which PW3 unfastened and the Appellant was then able to change gears. The Appellant was then arrested and the lorry towed to Athi River Police station. A scene of crimes officer was then instructed to take photos of the items recovered.

Muasa Kiilu Kithuka (PW1) who is a technician in-charge of Telkom exchange was informed of the recovery and was called to Athi River Police station to identify the items. He indicated that he identified some cable as property of Telkom Kenya Limited. He identified it by the peculiar colour of the code which he said has insulated wires which are twisted and are orange in colour, which colour is a mark of Telkom Kenya Limited. He stated that the vandalism affected communication in the area, and that the company and received numerous phone calls on the communication disruption. He stated that the estimated price of the cable was KShs. 600,000/-. On cross-examination PW1 confirmed that he was the complainant, but had not reported the offence to the police.

The Appellant was put on his defence and he gave sworn evidence as follows. That he had on the material day transported household items for a client who was relocating to Athi river. On his way back to Nairobi the lorry experienced mechanical problems. Mechanics tried to repair the lorry in vain and he opted to sleep inside the lorry as he guarded it overnight. While sleeping he heard a knock at the driver’s door. On opening, there were police officers who inquired what he had carried. He explained to them that he was on his way from transporting items when the vehicle broke down. The police checked the rear of the vehicle and told him to accompany them to the police station where he was charged with the offences he was facing. On cross-examination he denied being privy to the origin of the cables.

I have considered the arguments made by the Appellant and Prosecution and evidence in the trial Court. The main issue raised in this appeal is whether the Appellant’s conviction for the offence of tampering with telecommunication equipment with intent to cause mischief was based on consistent and sufficient evidence.

I note firstly in this respect that PW1 who was the complainant, admitted to not having made a complaint, and he was not present at the scene of the alleged crime when the cable was alleged to have been recovered from the Appellant’s lorry. With such failure, he was not best placed to tell without a doubt whether indeed the cable that he identified had been taken from the scene of crime.

In addition in this respect, the scene of crime officer who is alleged to have taken photographs of the items recovered from the Appellant’s vehicle was never called to testify or produce the said photographs to confirm that they were indeed recovered from the scene. It would also have been useful to the prosecution’s case to avail the evidence of the third police officer who informed PW2 and PW3 of the suspicious activities at the scene of the crime so as to clarify these doubts.

I acknowledge in this regard that there is no legal requirement in law on the number of witnesses needed to prove a fact as provided in section 143 of the Evidence Act, however, it must be noted that the prosecution ought to avail all witnesses necessary to establish the truth. It was in this respect held as follows in Bukenya & Others v. Uganda, [1972] EA 549:

“(i) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.

(ii) That Court has right and the duty to call witnesses whose evidence appears essential to the just decision of the case.

(iii) Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.

Lastly, PW2 and PW3’s testimonies contradicted. While PW2 stated that the lorry was being reversed at the time they approached the scene, PW3 evidence was that the lorry had stalled. This in my view is a crucial contradiction that affects the allegation that the lorry was used to pull the cable, which was a key element of the charge, and also serves to corroborate the Appellant’s version of what transpired on the material night.

Arising from the findings in the foregoing, I find that the Prosecution did not prove their case against the Appellant beyond reasonable doubt. I accordingly quash the conviction of the Appellant for the offence of tampering with telecommunication equipment with intent to cause mischief contrary to section 31 of the Kenya Communication Act 1998, and set aside the sentence imposed upon the Appellant of a fine of Kshs. five million (5,000,000/-) or in default 10 years imprisonment. It is further ordered that the Appellant be and is hereby released from custody unless otherwise lawfully held.

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF OCTOBER 2017.

P. NYAMWEYA

JUDGE