[2017] KEHC 4087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL APPEAL NO.128 OF 2015

(Being an Appeal from Original Conviction and Sentence in Criminal Case No.15 of 2014 of the Chief Magistrate’s Court at Naivasha before S. Mwinzi- SRM)

JACKSON MAMBO ARWA………..APPELLANT

-VERSUS-

REPUBLIC…………...……………PROSECUTOR

J U D G M E N T

1. The Appellant herein had been charged jointly with one John Njoroge Kamauwho was the 1st Accused at the trial. The said Accused person absconded in the course of the trial and the prosecution withdrew the charges against him. The Appellant herein Jackson Mambo Arwa was the 2nd Accused. He was tried on five counts. The first count was Robbery with Violence contrary to Section 296 (2) of the Penal Code.

2. The particulars in respect of count 1 are that on the 20th day of October, 2013 at Site Estate in Gilgil District within Nakuru County, jointly with another already before court being armed with dangerous weapons namely an AK47 rifle and a machete robbed Salim Hemed Fundi of his Ceska pistol, a 21” Sony television set, a 6Kg gas cylinder and a sub-woofer all valued at Kshs 80,250/= and immediately before the time of such robber threatened to use actual violence to the said Salim Hemed Fundi.

3. The second count was Being in possession of a firearm without a firearm certificate contrary to Section 4 (A) (a) as read with Section 4 (2) of the Firearms Act. In counts 3 and 4 he was charged with Being in Possession of ammunitions without a firearm certificate contrary to Section 4 (A) (a) as read with Section 4 (2) of the Firearms Act. In the fifth count he was charged with Being in Possession of Government stores contrary to Section 324 (2) as read with Section 36 of the Penal Code. The particulars of Count 2, 3, 4 and 5 are set out in the Charge sheet.

4. The Appellant was convicted on all five counts at the close of the trial. He was sentenced to death in respect of count 1, and 7 years imprisonment on each of the counts 2 to 4. On the fifth count, he was sentenced to one year imprisonment.

5. Aggrieved by the lower court decision, the Appellant filed an appeal to this court. The Appellant has challenged the conviction through his three amended grounds of appeal. The grounds state that:

“1. THAT, the learned trial magistrate erred both in law and facts when he convicted me in the present case while failed to find the keys witness were unreliable as they outright liars.

2. THAT, the learned trial magistrate erred both in law and facts to apply and rely on the doctrine of recent possession failing to observe that the item in and issue remained questionable.

3. THAT, the learned trial magistrate erred both in law and facts when he dismissed my plausible defence referring me for an explanation hence shifting burden of proof against me.”

6. In his written submissions in support of his grounds of appeal, the Appellant states that while he does not dispute the robbery uponPW1, he challenges his involvement therein as stated by the prosecution witnesses. He highlights the fact that the complainant (PW1) did not identify him during the robbery. He challenges the identification of the Ceska pistol by prosecution witnesses and asserts that PW1and PW4 referred to two different weapons.

7. Thus the trial magistrate, in his view, misapplied the doctrine of recent possession in the case. He takes issue with the omission by the prosecution to tender as an exhibit the inventory of goods recovered from his house. He further argues that he gave a good defence and ought to benefit through an acquittal.

8. On his part, Mr. Mutinda for the DPP opposed the appeal. He reiterated the prosecution evidence and asserted that the pistol was produced at the trial.

9. As stated in Pandya -Vs- Republic [1957] EA 336 the duty of the first appellate court is to review the trial evidence afresh and to draw its own conclusions. The court observed that:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

10. The prosecution called four witnesses during the trial. The gist of the prosecution case was that early on the morning of 20/10/2013 Chief Inspector Hemed Fundi (PW1) was asleep in his house at Site Estate, Gilgil. A gang of robbers armed with a machete and an AK 47 rifle burst into his bedroom. They threatened to kill him and ordered him to lie face down facing the wall. They took his Ceska Pistol No. F2171 which was tucked in the mattress, a television set and woofer before escaping. The matter was reported to police and flying squad officers in Naivasha.

11. It is the prosecution case that in December 2013 the Appellant gave Jared Onyango(PW2) a Nokiaphone as collateral for an advance of Shs 500/=. PW2 did not use the Nokia phone until a few days prior to the 3rd January 2014, when he was lured by a phone call by a supposed boda boda customer to a hotel. The ‘customer’ turned out to be police who arrestedPW2. He assisted police, including IP Singi (PW3) of Naivasha Flying Squad to trace the home of the Appellant.

12. The officers found the Appellant at home. They recovered PW1’s stolen Ceska Pistol, its magazine and fifteen rounds of ammunition, two of them spent. Also recovered were an assortment of military apparel, footwear, bags, rifle sling and a sword. The latter items were identified to be government stores. The pistol and its magazine containing five rounds of ammunition were identified as PW1’s stolen property.

13. The recovered firearm and live ammunition were dispatched to the ballistics expert for examination. A report prepared by the ballistics expert CIP Alex Mwandawiro (PW4) of the ballistic laboratories at CID headquarters was tendered at the trial. It confirmed that the Ceska pistol was a firearm and that the live ammunition in its magazine was compatible with the pistol. The other ten rounds of ammunition was found to be live and suitable for an AK 47 Rifle.

14. In an unsworn defence statement, the Appellant stated that he is a resident of Gilgil. He testified that on the day of his arrest on 3/1/2014 he was in his home watching television. Two police officers came and conducted a search therein, taking a phone and wallet interalia. They took him to a second house where they conducted a search and threw out some goods therefom. That police subsequently escorted him to their car where they took photographs. He denied that he sold a phone toPW2 or that any of the exhibited goods were recovered from his house. The rest of his statement consisted of what appeared to be more of submissions than evidence.

15. There is no dispute that the appellant was arrested on 3/1/2014 in connection with robbery reports made at Gilgil Police Station. Concerning the robbery on PW1, there is no dispute that the witness could not identify the Appellant as one of the robbers who struck on 20/10/2013 and made away with PW1’s Ceska pistol and household goods.

16. Therefore, in this case the main evidence against the Appellant on the 1st Count was circumstantial. The evidence relates to the Appellant’s possession of PW1’sCeska Pistol, its magazine and ammunition on 3/1/2014. The pistol had been stolen in October 2013.

17. It would seem that, it was only after Jared Onyango (PW2)inserted his own sim card and switched on the phone given to him by the Appellant that Flying Squad police officers got the first break in their investigations. Evidence by PW3 is that police lured the former, a boda bodacyclist to a rendezvous where he was arrested. Police recovered the phone from PW2. The said phone related to a different robbery report. PW2also led to the arrest of the Appellant who had allegedly given the phone to him earlier as a collateral for a Shs 500/= loan. At the home of the Appellant, the Ceska pistol, magazine, ammunition and government stores were recovered.

18. In his judgment the trial magistrate observed concerning the Ceska pistol:

“The prosecution case in count one seem to be built on the recent possession of stolen items. It is clear from the evidence adduced that the Appellant was found in possession of the Ceska pistol No. F2171. ”

19. The evidence concerning the recovery of the Ceska Pistol, its magazine and several rounds of ammunition at the home of the Appellant was clearly accepted by the trial court. The trial magistrate having considered the evidence connecting the Appellant with the Ceska pistol stolen from PW1concluded that “the application of the doctrine of recent possession could be justified” (sic)

20. The recovery evidence, led throughPW3 appears consistent and was not shaken during cross-examination and, at no point did the Appellant contend during cross-examination ofPW3that the pistol and other goods were found in a different home, rather than his. According to PW3 the Appellant was polishing boots at his house when police arrived. It would be most unusual that PW2 blindly implicated and led police to the Appellant concerning the suspected stolen phone while police “planted” a Ceska Pistol and ammunition on him as well as the other government stores.

21. The Appellant’s challenge regarding the identification of the pistol by PW1 and police was not raised in the trial when PW1, 3 and4 testified. Upon my own evaluation of the witnesses’ evidence there is no doubt that the Ceska pistol in question was properly identified as the conclusion of the trial magistrate revealed. The witnesses gave the description of the pistol as Ceska pistol serial number F2171 [Exhibit 1]. The reference in the Ballistics Report [Exhibit 18] to “CZ85B0” is clearly to the model rather than the serial number. Only one Ceska pistol was tendered in the trial, namely Ceska pistol serial number 2171 which all the witnesses including PW1 identified.

22. There is no evidence that the police officers knew the Appellant before his arrest. Indeed they only traced him because PW2had switched on the phone the Appellant had given to him. The Appellant’s possession of the Ceska pistol with its magazine and ammunition only 3months since PW1 was robbed is significant. In light of the nature of the item, the period is recent enough in relation to the robbery on PW1. His defence being a denial the Appellant did not rebut the prosecution evidence on this score. Similarly evidence that the military goods were recovered elsewhere appears unconvincing.

23. On the application of the doctrine of recent possession of stolen goods, the Court of Appeal stated in Ogembo -Versus- Republic, [2003]1 EA,that:

“For the doctrine of possession of recently stolen property to apply, possession by the appellant of the stolen goods must be proved and that the appellant knew the property was stole`n.”

Recently, this Court in Moses Maiku Wepukhulu & PAUL NAMBUYE NABWERA -Versus- Republic CR.A NO. 278 OF 2005(Koome, Mwera & Otieno-Odek, JJ.A.) quoted with the approval what constitutes the doctrine of recent possession in the case of Malingi -Versus- Republic, [1989] KLR 225:

“By the application of the doctrine 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. That the item he has in his possession has been stolen; it has been stolen a short period prior to their possession; that the lapse of time from the time of its loss to the time the accused was found with it was (from the nature of the item and the circumstances of the case) recent; that there are no co-existingcircumstances which point to any other person as having been in possession of the items.”

The doctrine is a rebuttable presumption of fact. Accordingly, 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 or was a guilty receiver.

As was aptly stated in the case of Hassan -Versus- Republic, (2005) 2 KLR 151:

“Where an accused person is found in possession of recently stolen property, in the absence of any reasonable explanation to account for this possession, a presumption of fact arises that he is either the thief or a receiver.”

24. Upon reviewing the evidence, I am satisfied that the Ceska pistol magazine and fifteen rounds of [Exhibit 1 – 3] ammunition were found at the Appellant’s home and properly identified by PW1and PW3. Further, that the doctrine of recent possession was properly applied in the circumstances of this case.

25. Similarly evidence by PW3 regarding the recovery of government stores [Exhibit 4 to 19] at the Appellant’s home was not shaken during the trial. The goods were of substantial quantity. Although the mentioned inventory of the recovered goods was not tendered in court, the actual physical items were placed before the trial court as exhibits and marked as above. An objection relating to the absence of an inventory cannot be upheld in a case where physical recovered physical items are exhibited at a trial.

26. The Court of Appeal has pronounced itself on the effect of failure by police to prepare/tender a recovery inventory in the case ofLeonard Odhiambo Ouma and Another -Vs- Republic [2011] eKLR. The court observed that:

“Failure to compile an inventory as contended in ground 5, is in our view a procedural step which in the circumstances, did not prejudice the Appellants in any way and for this reason, the omission did not vitiate the trial. We find no substance in this ground as well.”

27. Later, the High Court observed inStephen Kimani Robe & Others -Vs- Republic [2013] eKLR that such failure:

“The purpose of an inventory is to keep a record of exhibits recovered during the investigation. Failure to prepare an inventory cannot override the physical existence of the exhibits especially where other witnesses apart from the officer who made the recovery confirms their existence.”

28. As in the case of the Ceska pistol, magazine and ammunition, the Appellant did not give any explanation for his possession of military goods including uniform and other equipment. His denial was displaced by the prosecution evidence and his defence was properly rejected. In the result I find no merit in this appeal and will dismiss it.

29. That notwithstanding, I note that the trial court having sentenced the Appellant to death on count 1 proceeded to sentence him on the 2nd to 5th counts to imprisonment terms. That was not proper. I would direct that the sentences in respect of the 2nd to 5th counts be held in abeyance in the circumstances.

Delivered and signed at Naivasha, this 14th day of July, 2017.

In the presence of:-

Mr. Mutinda for the DPP

N/a for the Appellant

C/C - Barasa

Appellant - Present

C. MEOLI

JUDGE