[2017] KEHC 3329 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU

CRIMINAL APPEAL NO. 4 OF 2014

BETWEEN

IDI HASSAN KAZUNGU..........................................APPELLANT

AND

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

(Being an appeal from the original conviction and sentence of Hon. L. Gitari, CM dated 15th April 2014 at the Chief Magistrate’s Court at Kisumu in Criminal Case No. 669 of 2012)

JUDGMENT

1. Before the subordinate court, the appellant, IDI HASSAN KAZUNGUwas charged, convicted and sentenced to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). He was charged with his co-accused who was acquitted of the charge of robbery with violence but convicted of handling stolen property. The particulars of the charge were that on 1st December 2012 at Nyawita Sub-location, Kisumu East District, he and his co-accused together with others not before the court, while armed with dangerous weapons namely pangas and metal rods robbed FREDRICK OTIENO AYIEKO of his laptop, 2 mobile phones, Nokia and Samsung, 2 pairs of shoes, a pair of socks, laptop bag, a pair of socks and wallet all valued at Kshs. 60,000/- and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said FREDRICK OTIENO AYIEKO.

2. The appellant also faced an alternative charge of handling stolen goods contrary to section 322(2) of the Penal Code in that on 1st December 2012 at Obunga Village in Kisumu District, otherwise than in the course of stealing, dishonestly received or retained a brown pair of shoes make Sahara, a pair of black socks and a Toshiba laptop valued at Kshs. 31,600/- the property of FREDRICK OTIENO AYIEKO knowing or having reasons to believe them to be stolen goods.

3. As this is a first appeal, I am obliged to review the evidence afresh and come to an independent decision as to whether to uphold the judgment, always bearing in mind that I did not hear or see the witnesses in order to assess their demeanor. In order to proceed with this task, I will set out the material facts as they emerged at the trial.

4. The complainant, Fredrick Otieno Ayieko (PW 1), testified that he was asleep in his house on 1st December 2012 when, at about 2. 00am, he was awoken by commotion from outside. While he was still in bed, a person entered the room suddenly, threatened to kill him and ordered him to face down. He demanded money and his mobile phone and disconnected his Toshiba laptop which was next to his bed and put it in its bag. He also took his mobile phones; Asha 305 and Samsung 5233 and two pairs of shoes including a pair of Sahara’s. Another man also entered the room with a torch and crow-hammer and told him to give him money and his phone. After the two men left, PW 1 woke his neighbour up but before they could do anything, private security guards and then police arrived. The police did not arrest anyone on that morning. PW 1 was requested to make a list of items that were stolen and report to the police.

5. PW 1 further testified that he posted the list of his stolen items on his Facebook page and asked his friends to assist in locating anyone selling his laptop. At 3. 00pm, his sister Jackline Ayieko alerted him that someone was selling his laptop in Obunga. He proceeded there and found someone who was wearing the socks and shoes that had been stolen from him early that morning, selling his laptop. The man, who turned out to be the appellant, told him that he had been given the items by another person. With the assistance of the Assistant Chief, the appellant was arrested.

6. PW 1 testified that he was able to identify the appellant on the material night because the security lights outside his room shone through the open windows. He told the court that the appellant is the one who took his shoes, laptop and pair of socks. PW 1 was able to identify his laptop by switching it on with his password and it had all his documents.

7. The Assistant Chief of Kanyakwar Sub-location, Maurice Ojwang Nyanga (PW 5) recalled that on 1st December 2012 at about 5. 00pm, he was called by his superior and informed that a thief had been arrested by the public in his locality. PW 5 called Stanley Manyasi Aranda (PW 4) at about 5. 30pm and told him that a thief had been arrested by members of the public who wanted to lynch him and that he should go and assist on the issue. When he went to where the suspect was, he found the appellant had been tied and was being beaten and had a laptop, shoes and socks which had been allegedly stolen. The appellant took them to the home of the co-accused who handed over to him four mobile phones wrapped in a piece of paper which he said the appellant had left.

8. PW 5 testified that he went to the place where the suspect was. He found the appellant and PW 1 who told him that the appellant was carrying his laptop. The appellant took them to the house where his co-accused was. The co-accused gave them mobile phones given to him by the appellant. He took the appellant and his co-accused to Obunga Police Post where they were re-arrested by the investigating officer, PC Philip Laboso (PW 7). PW 7 also took witness statements and organised an identification parade conducted by Inspector Gitonga (PW 6) where PW 1 identified the appellant.

9. In his sworn statement, the appellant denied the offence. He told the court that his wife was the sister to PW 1. He claimed that he belonged to a group and asked her to collect Kshs. 12,600/- from it on his behalf. When he asked his wife for the money, she told him she had given it to PW 1. He beat her and chased her away. On the next day, he was summoned to the Chief’s office and when he went there, he found PW 1 and his wife. He was arrested thereafter and while in custody, he was subjected to an identification parade.

10. After analysing the facts, the trial magistrate found as a fact that a robbery took place on the material night. She considered the doctrine of recent possession of stolen property and convicted the appellant on the basis that he was found with PW 1’s laptop and a pair of shoes which were stolen during the robbery. As regards identification, the trial magistrate found that the identification parade lacked probative value as PW 1 was involved in the arrest of the appellant and recovery of the stolen items.

11. In his Petition of Appeal, the appellant dwelt largely on the issue of identification. He contended that the prosecution did not establish its case on the strength of identification evidence notwithstanding the fact that conditions coupled with circumstances prevailing at the time of the act were not conducive for positive identification. He also contended that the trial magistrate erred by relying on an identification parade that was worthless. He submitted that the prosecution evidence before the trial court was contradictory and could not support a conviction. As regards the doctrine of recent possession, the trial magistrate erred in law and in fact as the facts relied on did not establish the doctrine to the required standard.

12. Ms Osoro, counsel for the respondent, supported the conviction and submitted that the conditions obtaining at the time the robbery took place were conducive for positive identification and that the appellant was identified by PW 1. She further agreed with the court that the appellant was caught with PW 1’s property hence the doctrine of recent possession was properly applied.

13. There is not dispute that a robbery took place on the early morning of 1st December 2012. PW 1 gave clear and credible evidence on how one assailant broke into house, threatened him with violence and took his laptop, mobile phones, shoes and socks. In the course of stealing, he was joined by a second person who also threatened him and demanded money and his mobile phone. These facts satisfied the ingredients of the offence of robbery with violence which were clearly set out by the Court of Appeal in the case of Oluoch v Republic[1985] KLR 549where it was held that:

Robbery with violence is committed in any of the following circumstances:

(a) The offender is armed with any dangerous andoffensive weapon or instrument;or

(b) The offender is in company withone or more person or persons;or

(c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………”[our own emphasis].

14. The use of the word ‘or’in the statutory definition of robbery means that proof of any one of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code. In Dima Denge Dima & Others v Republic CA Criminal Appeal No. 300 (UR), the Court of Appeal held that:

The elements of the offence under section 296(2) are three in number and they are to be read, not conjunctively, but disjunctively. One element is enough to found a conviction.

15. Thus the main issue for consideration in this appeal is whether the appellant was one of the assailants. The prosecution case before the trial court was grounded on direct evidence of identification in difficult circumstances and the doctrine of recent possession. On the issue of the identification, the evidence was that the appellant was a stranger to PW 1. In Wamunga v Republic[1989] KLR 424, the Court of Appeal warned that;

[W]here the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be the basis of a conviction.

16. Since the assailant was a stranger, the police could test the identity of the appellant before an identification parade but as the trial magistrate rightly pointed out, the parade lacked probative value because PW 1 was involved in the arrest of the appellant and recovery of the stolen property on the same day he was robbed. Since PW 1 interacted with the appellant so soon after the incident, even before recording his statement with the police, his testimony on the issue of identification could not be relied upon to implicate the appellant.

17. The appellant’s conviction rested on the doctrine of recent possession which entitles the court to draw an inference of guilt where an accused is found in possession of recently stolen property in unexplained circumstances. The Court of Appeal summarised the essential elements of the doctrine of recent possession in Eric Otieno Arum v Republic KSM CA Criminal Appeal No. 85 of 2005 [2006]eKLR, where 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 of 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 the other.

18. Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. While the law is that in a criminal trial, the prosecution bears the burden of proving the case against the accused throughout the case, in a case where one is found in possession of recently stolen property like in this case, the evidential burden shifts to him to explain his possession. That explanation need only be a plausible one but he needs to put it forward for the court’s consideration (see Malingi v Republic[1988] KLR225). In PaulMwita Robi vRepublicKSM Criminal Appeal No. 200 of 2008 [2010]eKLR, the Court of Appeal observed that;

Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is (sic) especially within the knowledge of the accused and pursuant to the provisions of section 111 of the Evidence Act Chapter 80, the accused has to discharge that burden.

19. The evidence is clear that PW 1 was called by his sister and informed about a person selling a laptop. When he went to Obunga, he found the appellant with his Toshiba laptop, shoes and socks. A laptop is a unique item and when called upon to identify it at the police station, he was able to enter his password and confirm the documents in the computer. The laptop was found on the same day as the robbery in the hands of the appellant. All this evidence was corroborated by PW 4, PW 5 and PW 7. The appellant’s defence that he was framed was an afterthought and in any case, he said nothing of the property recovered from him. He did not explain how he got the laptop or assert ownership. I therefore find and hold that all the elements of the doctrine of recent possession were satisfied leading to the irresistible conclusion that the appellant was involved in the robbery that took place earlier in the morning of 1st December 2012.

20. I affirm the conviction and sentence. The appeal is dismissed.

DATED and DELIVERED at KISUMU this 3rd day of October 2017.

D. S. MAJANJA

JUDGE

Appellant in person.

Ms Osoro, Prosecution Counsel, instructed by the Office of Director of Public Prosecutions for the respondent.