[2015] KEHC 185 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 151 OF 2013

HARUN MAARA GAGAI…………………………...,,.……...APPELLANT

Versus

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

(Being an appeal from original conviction and sentence of the Senior Principal Magistrate’s Court at Voi in Criminal Case No. 787 of 2012 delivered on 22/5/2013 by Hon. L. M. Nyakundi Ag. PM)

JUDGEMENT

The Appellant, Harun Maaru Gagai was charged with the offence of robbery with violence Contrary to section 296(2) of the penal code, and the second count being in Possession of Forged Bank Notes contrary to section 359 of the penal code.

The particulars of the offence are that on the 15th day of December 2012 at Ndara village within Taita Taveta county, while armed with a knife robbed Gibson Shungula a motor cycle registration number KMCX614B make Skygo 150 valued at Ksh.75,000 and at or immediately before or immediately after the time of such robbery wounded the said Gibson Shungula. The report was made to the police who commenced investigation. The appellant was arrested on the same day at Mackinon road where on a quick search was found in possession of a forged bank note. The police further charged him with the offence of being in possession of a forged bank contrary to section 359 of the penal code.

The appellant pleaded not guilty and was after full trial, convicted and sentenced to a mandatory death sentence on count I. There was no finding made in respect of Count 2.

Dissatisfied by the convicted and sentence of the learned trial magistrate, appellant has appealed to this court relying on amended memorandum constituting the following grounds:

That the learned trial magistrate erred in failing to find out that the prosecution did more lead evidence to the required standard to identify me the application as the perpetrator of the crime heading to this carnage of justice.

That the learned trial magistrate eared me failing to see that the prosecution offence disclosed by the facts of this case is that of handling stolen goods contrary to section 322 (2) of the penal code.

That the learned trial magistrate erred in failing to re-analyze and re-evaluation. My defense before dismissing the same leading to miscarriage of justice.

On the strength of these grounds the application prayed that the appeal be declined and both conviction and sentence be quashed.

This is the first appellate court. It is trite that the duty of the first appellant court is to reconsider the evidence, evaluate it and draw its own conclusion in order to satisfy itself that there is no failure of justice. It is not enough for the first appellant court to merely scrutinize the evidence to see if there was some evidence to support the trial court’s findings and conclusion.

The duties of the first appellant court were considered in the court of appeal case of Okeno – Vs. Republic Criminal Appeal No. 32 of 1972 E.A.L.R.

See also (PETERS – VS – SUNDAY POST 1958 EA 424, Njoroge – Vs. – Republic 1987 K.L.R. 19)

EVIDENCE AS ADDUCED AT THE TRIAL COURT

Prosecution Evidence:

PW1 Gibson Shungula was on 15th December, 2012 at around 9. 00 am was working as a motor cycle taxi driver at Voi town. He was hired by the appellant as a passenger from Voi town to Power line at a fair of Ksh.450. They set off the journey using the road that leads to Kajire village. The appellant according to PW1 stopped the motor cycle after some distances upon alighting appellant pulled out a knife and attempted to stab him. In the straggle that ensued the complainant was stabbed on the left side of the stomach and left arm. The appellant robbed the complainant of his motor cycle registration no. KMC X 614B, black wallet, mobile phone handset Sony Erickson and identity card of his and that of a friend. The appellant ordered complainant to leave the place before he finishes him completely. The appellant then drove away with the motor cycle.

The now injured complainant managed to get to the Mombasa – Nairobi Highway where he found traffic police officers who assisted him to get to Moi Hospital- Voi. He informed one of the motor cycle riders at Voi stage, who came with other riders to Moi Hospital. The doctors were not working at the Moi Hospital and his colleagues took him first to Riflot for First Aid before taking him to Jocham Hospital where his stomach was operated on and cleaned, and he was admitted for one week. He does not know how the accused was arrested, nor how the matter was reported. He positively identified the knife used in the attack which was marked MFI-1. He identified his wallet marked MFI - 2, but not its contents. He identified the photocopies of his identity card and that of his friend marked MFI - 3 as well as his phone Sony Erickson marked MFI – 4. He had been employed to ride the motor cycle registration number KMCX 614B make Skygo, blue in colour with Yamaha helmet marked MFI - 5.

He was informed a day after the incident that the attacker had been arrested and the motor cycle recovered. He did not see the attacker again until that day in court, when he identified the appellant as the passenger who attacked him. When cross-examined by the appellant, the complainant is recorded as having stated, “You are the one who attacked me. When we spoke I saw you clearly and even saw the mark on your head….., I have not forgotten your face. I saw you for the first time on 15th December, 2012 at 9. 00am. I can remember your face clearly. The items stolen from me were also recovered from you.” At re-examination, he stated that he could identify the appellant because of the mark on the left side of his head.

PW2. JOSEPH WASILIMA WAFULA MUDAKI runs a motor cycle repairs garage at Mackinon road. On 15th December, 2012 at 11. 00 am while out of the garage, he received a call from his employees at the garage. He was informed that there was a person selling a motor cycle for Ksh.20,000/- without a log book. He instructed the employees to have him wait until he arrives at the garage. Meanwhile, he called the in-charge at Mackinon Police Post and reported the matter. On his return, he went to Mackinon Police Post and was informed that the person who had come with the motor cycle had been taken to Voi Police Station. He did not see the person or the motor cycle.

PW3, SNR. SGT. ELISHA OBUNGE, No. 39642 is the In-charge at Mackinon Police Post. He confirmed having been called by PW2 at around 12. 00pm about a suspicious person trying to sell a motor cycle at Ksh.20,000/= without a log book. He went to the garage with two other officers. He found the appellant sitting on the motor cycle. When asked who the owner of the motor cycle was, the appellant raised his hand. Another lady, who was at the scene, also pointed him out. They arrested the appellant, searched him and recovered some papers and a mobile phone. The appellant was booked for being in possession of suspected stolen property. PW3 called a shop in Voi town and inquired if they knew about the motorcycle. He was informed that the motor cycle had been purchased from the shop but had been reported stolen. Later the OCS Voi Police Station came and took the motor cycle and the accused person. He identified MFI – 5 as the motor cycle recovered from the appellant. The appellant was also arrested with a fake Ksh.1,000/- note.

PW4, CPL STEPHEN SAMBILI NO. 40936 was the investigating officer. On the material day 15/12/2012 he received a report of robbery that had occurred along Mombasa Nairobi road near Kajire junction. He recorded the incident and proceeded to the scene. They did not find the robber. They returned to the station and later proceeded to visit the victim but found he had been moved from Moi Hospital – Voi. They could not talk to him Riflot Hospital as he was unconscious. They returned to the police station and circulated the registration of the stolen motor cycle to all stations in Coast Province. They later received a report that the motor cycle and the appellant were at Mackinon Police Post. He proceeded to Mackinon Police Post with the alleged owner of the motor cycle who was able to identify it. They then brought the motorcycle and the appellant to Voi where they charged him with the present offence. They recovered a knife, a pouch with a fake Ksh.1,000/- note, photocopies of two identity cards, and a Sony Erickson phone which had been taken from the appellant at Mackinon Police Post. PW4 produced all items previously marked, as exhibit 1 – 6.

PW5 MUSTAFA MASAis a doctor at Moi District Hospital in Voi. He produced a medical report of PW1. He stated that PW1 had a penetrating wound on the abdomen and a wound on the hand. He was treated with analgesics, tetanus toxoid and was transfused. The injury was classified as grievous harm and the weapon used to inflict injuries was sharp. He produced the P3 form as exhibit on behalf of Dr. Charo.

APPELLANTS DEFENCE

DW1 Harun Maaru K. Gagai elected to give unsworn statements and called no witnesses. He stated that in the month of December a date he cannot recall he was working at a construction site at Mackinon Road. On the material day he had proceeded for a lunch break at around 1. 00 pm. According to his evidence at around 1. 30 pm two police officers came to where he was and arrested him with no information or reasons. He was taken to the police station and charged with an offence he did not understand. He denied assaulting anybody or stealing a motor cycle. It was further his testimony that while at the police station police called for a motor cycle and brought a knife as exhibits in the case against him which he denied.

On appeal:

The appellant submitted and highlighted issues in respect of the grounds challenging conviction and sentence.

He submitted that he was arrested while working at a construction site at Mackinon Road. During lunch break police arrested him. While at Voi police station sent for a knife, fake note and a motor cycle. They alleged that he had stolen the motorcycle and in the course of committing the offence injured the complainant. He challenged the evidence of PW2 who alleged that he had gone to his garage attempting to sell the motorcycle to the workers. The appellant further argued that the workers were not called as witnesses. He mentioned that he did not steal the motorcycle and no evidence was adduced to connect him with the theft. He also denied that PW1 identified him as the person who committed the crime.

He submitted that the finding of the court on the evidence was as variance with the charge. This accusing him to him was a charge of handling stolen property. The variance was in respect of the items recovered and those particularized in the charge sheet.

According to the appellant he argued that the charge sheet only mentions the motorcycle but not the mobile phone handset, wallet which also police alleged to have been robbed from (PW1) the complainant.

RESPONDENT SUBMISSIONS ON APPEAL:

Ms. Ogweno, state counsel submitted and vehemently opposed the appeal on both conviction and sentence. According to Ms. Ogweno, the incident of robbery took place in broad day light at 9. 00 am. The complainant (PW1) who had been hired by appellant had positively recognized him. During the course of the journey appellant pulled a knife and stubbed complainant occasioning him personal injuries. The injuries were certified by a medical doctor who filled the P3 duly exhibited and confirmed complainant suffered grievous harm. The appellant having disempowered complainant drove the motorcycle away from the scene.

She further submitted that on the same day appellant had gone to a garage in Voi town and offered to sell the motorcycle at Ksh.20,000. The workers at the garage informed the owner of the garage PW2 who in turn made a report to Mackinon police post. PW3 of Mackinon police post left for the garage to confirm the details of the report made by PW2 on the details of the sale of the motorcycle. PW2 on receipt of information referred the matter to the police who effected arrest against the accused, recovered the motorcycle KMCX 614B, mobile phone and wallet with the fake Ksh1000 note. It was her conviction that the appellant was positively identified by (PW1) and also found with stolen motorcycle belonging to the complainant.

In this case Ms. Ogweno submitted that the prosecution established all the ingredients of robbery with violence beyond reasonable doubt. That the appellant was the perpetrator of the crime. Ms. Ogweno dismissed the defense as an afterthought and improbable in the circumstances.

The learned trial magistrate in his judgment evaluated the prosecution case and defence in totality. He made the following findings:

“Having adduced that the prosecution evidence against the accused person was overwhelming, and that no identification parade was conducted, I am left to rely on the directions of recent possession of stolen property to determine the guilty or haven of it of the accused person.

From the evidence before this court, the motorcycle stolen from the complainant was recovered from the accused less than twelve hours after the theft…….No explanation was given by the accused person on how he came into possession of the items soon after the theft took place. The inevitable conclusion is that the accused was that person who robbed and injured the complainant!

We will now consider the grounds of appeal

There are three main grounds of appeal which generally raise evidently matters and the applicable law. The appellant questions the weight full evidence as identification and recent possession of stolen goods. He also questions the veracity of the evidence particularly the evidence that lead police to the recovery of stolen goods. Lastly he complains that his defence was not re-evaluated and re-examined adequately by the learned trial magistrate.

Analysis of evidence and determination

In this case we first deal with the issue of identification which the learned trial magistrate did not rely on in convicting the appellant citing lack of an identification parade being conducted by the police.

We begin with the question whether the appellant was positively identified?

From the testimony of PW1, he described in detail the manner in which he was hired by the appellant on 15/12/12. The time of being hired to drop appellant from Voi town to power line was at 9. 00 a.m. In his testimony the distance covered took some time than earlier explained by appellant when negotiating the fare of Ksh.450. PW1 confirmed that through the side mirror and initial observation at Voi town he identified the appellant very clearly and positively. He gave the facial features and voice recognition from the time they were negotiating to enter into an agreement to hire the motorcycle. According to PW1, they had a communication at the time appellant hired him and in the course of the journey to power line where he was to be dropped.

Identification is a vital question. It is a vital question which has to be answered beyond reasonable doubts. There is no dispute that recognition in the instant case was said to have taken place at about 9. 00 a.m. in broad daylight. The appellant was arrested at two hours after the robbery, to be precise at 11. 00 a.m. There was no identification parade conducted. On his part learned trial magistrate rejected evidence and identification on grounds that no identification parade was conducted by the police.

The issue of law that arises and which begs for an answer is whether the absence of an identification parade negated evidence of visual identification.

On our part we do not think so, going by the circumstances of this case. We are guided by the legal principles in the case ofRepublic – Vs. –Turnbull and …….1976 3 ALL E.R. 54 where Lord Widgery had this to say:-

“First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition he should instruct them as to this reason for the need for such a warning and should make reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.

Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and actual appearance?”

In the case of:

R Vs. Karioki S/O Rushashio and another (1948 23 K.L.R (I) 21 The court stated as follows:

“Failure to make identification at a parade is not necessarily fatal, as in Karioki’s case, where identification was not made at the parade, but only in court, the court held that the evidence was in the circumstances sufficient to establish beyond all reasonable doubts that the accused was one of the group present at the relevant time and a participant in the crime.”

In the present case before us, the learned trial magistrate faced with the evidences by the prosecution against appellant could have applied the principles in R V Turnbull case, Wamunga – V – R 1989 K. L. R 424 at 430 before outright rejection of visual identification of the appellant. We are of the considered view that the circumstances pertaining to the identification of the appellant were favourable for a positive identification to take place.

The cardinal legal principle was to consider evidence of the single identifying witness (PW1) alongside any other evidence implicating the appellant and “Warn himself of the special need for caution on identification evidence of PW1 before convicting.”

The evidence was not tested as required by law under the guidelines set out in the R vs. Turnbull case. The outright rejection on the basis of lack of identification parade without subjecting the evidence to the test lay out to establish whether there was mistaken identity on the part of the complainant. The circumstances and uniqueness of each case should be carefully weighed before a finding on reliance with particular piece of evidence on identification. That to us was misdirection on part of the learned trial magistrate.

In evaluating and analyzing the evidence of PW1 we make the following observations. PW1 testified that he was able to identify the appellant because of the time the incident occurred. The first contact was on 15/12/12 at 9. 00 am. The time was in broad day light. They took time to negotiate the terms of hiring the motorcycle. This was a face to face conversation. The complainant and the appellant agreed on the fare to be paid. The means of transport was a motorcycle which the complainant stated that he continued to observe the appellant through the side mirror. He was able to get good physical and facial impressions of the appellant.

From the record there were no circumstances to impede positive identification to take place in this case. In his defence the appellant did not challenge nor controvert the evidence of PW1. In our scrutiny and evaluation the evidence of visual identification was cogent and credible weighed alongside recovery of this motorcycle of the complainant 2 hours after the robbery.

We are guided by the case of John Njagi Kadogo and 2 Others V. R 2006 E.K.L. R. The court stated:

“A court might base conviction on the evidence of dock identification if it is satisfied that on the facts and circumstances of the case. The evidence must be true and if prior thereto, the court warns itself of possible dangers of mistaken identities we have.”

The principle here is that not all dock identification is worthless. From the evidence in this case we are satisfied that appellant was properly identified and no errors or mistaken identity in the dock identification evidence. We think we have said enough regarding visual identification. The appeal on this ground lacks merit.

Secondly we take note that the appellants conviction was based namely on the grounds of being in possession of recently stolen goods. The doctrine of recent possession has been elucidated clearly in the case of:ERICK AHERIO ARUM –VS- REPUBLICCRIMINAL APPEAL NO. 85 OF 2005

The court stated as follows:

“In our view, before a court of Law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first, that the property was found with the suspect.

Secondly that: that property is positively the property if the complainant;

Thirdly, that the property was stolen from the complainant, and lastly, that the property was recently stolen from the complainant, the proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to another. In order to prove possession there must be acceptance evidence as to such of the suspect and recovery of the allegedly stolen property and in our view any discredited evidence on the same cannot suffice, no matter from how many witnesses”

In this appeal PW3 gave evidence that he was tipped off by PW2 as a person trying to sell a motorcycle for Ksh 20,000 without a log book. PW3 acted on the information, went to the scene where the transaction was taking place. He found a person who identified as the appellant who confirmed to him that he was in possession of the alleged motorcycle. PW2 testified that he arrested, searched the appellant and recovered the motorcycle. He confirmed that an earlier report had been made regarding a stolen motorcycle at 9. 00am on 15/12/12. The time effect arrest against appellant was around 12. 00 pm. The motorcycle and other recovered items were later shown to the complainant who identified them as the ones taken away during the robbery at 9. 00am the same day.

The appellant in his defence did nothing to shake the evidence of PW1, PW2 and PW3 by giving an explanation on how he came to be in possession of the alleged stolen goods.

In the presence case PW3 gave evidence that he was tipped off by PW2 as to a person trying to sell a motor cycle for Ksh.20,000 without a logbook. That person turned out to be the appellant. There is evidence that he was found at (PW2) garage with the motorcycle. He was arrested on the 15/12/2012 at 12. 00pm as per testimony of PW3. PW3 further testified that he searched the appellant case recovered the motorcycle earlier reported as stolen. The motorcycle was positively identified by (PW1). The appellant in his defence did nothing to shake. The evidence of PW1, PW2 and PW3 by giving and explanation on being in possession of stolen goods.

As it was held in the case of Stephen Njenga Mukuria and Awuor – Vs. – Republic Cr. Appeal No. 175 of 2003, the Burden Shifts from prosecution to the accused. The court held:

“The burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts.”

Firstly, that the item be had in his possession had been stolen a short period prior to the possession, that the lapse of time from the time of the loss, to the time the accused was found with it was, from the nature of the items and the circumstances of the case was recent; that there was no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is as a reputable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver.

See also Maingi, R V 1989 KLR 22

It is our view that the prosecution established beyond reasonable doubt that PW1 was the official owner of the motorcycle which was stolen from him a few hours after the recovery. The appellant was also found in possession of the black wallet, a Sony Erickson mobile handset. PW1 was clearly able to identify the items belonging to him. The appellant having possession of the items which PW1 made a claim over was required to prove by cogent evidence how he came to be in possession of the items. The scrutiny and evaluation of the entire record provides no evidence from the appellant discharging that burden.

Decision

After careful consideration we are satisfied that the learned trial Magistrate gave cogent reasons for accepting the evidence on doctrine of recent possession against the applicant. We also consider having ourselves further evaluated the matters to which we have referred regarding visual identification in the overall context of identification of accused persons. That dock identification is not fatal to all prosecution cases. It depends on the evidence, and circumstances of each case together with applications of laid down legal principles to test evidence of a single indentifying witness, and the trial court cautioning itself on reliance of such evidence in convicting the accused. The evidence of identification to be considered alongside other evidence to be used by the prosecution.

The upshot we come to the conclusion that the grounds of appeal on which the appellant based his appeal lacks merit. We uphold the conviction and the sentence imposed against the appellant. In the result we hereby dismiss the appeal accordingly.

Dated and delivered at Mombasa 30th September 2015.

D. CHEKWONY R. NYAKUNDI

JUDGE JUDGE

Present for the state:………………………

Appellant: ……………………....