[2013] KEHC 762 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL NO. 136 OF 2000

(An Appeal arising out of the conviction and sentence of MARTIN MUYA - SPM delivered on 11th February 2000 in Makadara CMC. CR. Case No.8407 of 1999)

JOHN KIMANI KIMARI………...............................................................APPELLANT

-VERSUS-

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

JUDGMENT

The Appellant, John Kimani Kimari was charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 25th May 1999, the Appellant jointly with others not before court, while armed with a dangerous weapon, namely a pistol, at California Estate Nairobi, robbed Naomi Waithera of a motor vehicle registration number KAH 170V make Toyota Corolla valued at Kshs. 400,000/- and at or immediately before or immediately after the time of such robbery, used actual violence to the said Naomi Waithera. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty for the charge. After full trial, the Appellant was convicted as charged and sentenced to death as is mandatorily provided by the law. The Appellant was aggrieved by his conviction and sentence. He duly filed an appeal to this court.

In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that he had been convicted on the basis of uncorroborated evidence of the prosecution witnesses. He faulted the trial magistrate for finding that he had been found in the motor vehicle that was robbed from the complainant soon after the robbery. He was aggrieved that the trial magistrate had failed to take into consideration the fact that the investigating officer did not testify in the trial. He was of the view that his conviction was unsustainable in the circumstances. He was aggrieved that the trial magistrate had reached the finding conviction him without considering the evidence that he had adduced in his defence which clearly explained the circumstances of his arrest. In the premises therefore, he urged the court to allow his appeal in entirety, quash his conviction and set aside the sentence that was imposed on him.

At the hearing of the appeal, this court heard oral rival submission made by Mrs. Gulenywa for the Appellant and by Mr. Karuri for the State. Mrs. Gulenywa submitted that the Appellant was convicted on two pieces of evidence. The first piece was the evidence of identification. He explained that the victims of the robbery told the court that they had not identified their assailants during the robbery. When the Appellant was arrested, Mrs. Gulenywa submitted that the police should have conducted an identification parade so that the persons who robbed the victims could be identified. She took issue with the fact that the prosecution witnesses did not tell the court the specific area that the Appellant was arrested so that a contrast could be made with the area that the victims were robbed of the motor vehicle. As regard the issue of possession, Mrs. Gulenywa submitted that the trial court did not interrogate the fact that there were many people at the scene where the Appellant was arrested. She explained that it was the prosecution’s case that three persons robbed the complainants. The police officer who arrested the Appellant did not give an explanation how the three persons escaped from the motor vehicle at the scene where the Appellant was arrested. She accused the prosecution of relying on hearsay evidence to convict the Appellant. She urged the court not to rely on the evidence of the police officer who testified that he had arrested the Appellant inside the motor vehicle that was robbed from the complainants. She submitted that the court should accept the version that none of the robbed items were found in the Appellant’s possession. Further, the prosecution did not adduce sufficient evidence to connect the Appellant with the robbery. She urged the court to allow the appeal and acquit the Appellant.

Mr. Karuri for the State opposed the appeal. He submitted that the two victims of the robbery did not identify the robbers when their motor vehicle was carjacked. They immediately called the police who issued an alert circulating the registration number of the motor vehicle. A few minutes later, police officers who included PW4, saw the motor vehicle. They pursued the motor vehicle and in the process shot the tyres of the motor vehicle. The Appellant was arrested in the motor vehicle. He was driver of the motor vehicle. Mr. Karuri submitted that the doctrine of recent possession applied in this case because the Appellant was found in possession of the motor vehicle that was robbed from the complainants so soon after the robbery. He stated that the explanation given by the Appellant in his defence did not dislodge the presumption that he was the one who had robbed the complainants of the motor vehicle. He submitted that all the ingredients to establish the offence of Robbery with Riolence contrary to Section 296(2) of the Penal Codewas established to the required standard of proof. In his view, the prosecution’s evidence was consistent and clear. He urged the court to dismiss the appeal and uphold the Appellant’s conviction and sentence.

This being a first appeal, it is the duty of this court to reconsider and to re-evaluate the evidence adduced so as to reach its own independent determination whether or not to uphold the conviction of the Appellant. As was held by the Court of Appeal in Njoroge –Vs- Republic [1987] KLR 19 at P.22:

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”.

In the present appeal, the issue for determination by this court is whether the prosecution adduced sufficient evidence to sustain the conviction of the Appellant on the charge of Robbery with Violence contrary to Section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt.

The Appellant’s appeal was previously heard by the High Court but the decision was set aside by the Court of Appeal because one of the Judges who heard the appeal did not sign the judgment. The Appellant is therefore presenting his appeal before this court for a second time. The fact that the appeal is being heard for the second time explains the length of the time that it has taken for this appeal to be heard by this court.

We have carefully re-evaluated the facts of this case. The prosecution called four (4) witnesses in a bid to establish its case against the Appellant. PW1 Naomi Waithera and PW2 Peris Nduta are respectively mother and daughter. On 25th May 1999 at about 7. 30 a.m., as they were leaving their resident house at California Estate Nairobi, they were accosted by two robbers who were armed with a pistol. They ordered PW1 and PW2 to get out of the motor vehicle. PW1 and PW2 told the court that when they were ejected from the motor vehicle, they did not have time to identify the robbers. In the hectic circumstances of the robbery, it was not unexpected that PW1 and PW2 failed to identify the robbers. PW3 PC John Kiprop was at the material time based at Buru Buru Police Station. He told the court that on 25th May 1999, a report was circulated that a motor vehicle had been robbed from the owners. The motor vehicle was recovered on the same day by police officers on patrol within Dandora Area. He produced the motor vehicle as a prosecution’s exhibit in the case. He told the court that the Appellant was arrested inside the motor vehicle while he was attempting to escape from it.

PW4 PC Barnabas Kiroria then attached at Buru Buru Police Station, told the court that on 25th May 1999 while he was on patrol within Dandora Area, he received a report which was circulated to all police officers that a motor vehicle registration No.KAH 170V had been robbed from the owners. The motor vehicle was robbed at 7. 30 a.m. He saw the motor vehicle. Inside the motor vehicle, were three (3) occupants. When they saw the police officers, they started firing at them. PW4 shot at the tyres of the motor vehicle. The motor vehicle was immobilized. Two (2) of the occupants of the motor vehicle managed to escape. The Appellant, who was the driver of the motor vehicle was arrested before he could escape. PW4 told the court he did not shoot the escaping occupants of the motor vehicle because there were many people present at the scene. The two occupants managed to mix with the members of public and made good their escape. PW4 was emphatic that he arrested the Appellant while he was inside the motor vehicle.

When he was put on his defence, the Appellant denied that he had been arrested while inside the motor vehicle. He testified that he was arrested outside the plot where he had gone to visit his brother in-law. He was ordered to lie down after which he was arrested and taken to Buru Buru Police Station. He was later charged with the offence of Robbery with Violence which he knew nothing of. He denied that he was arrested inside the motor vehicle which had been robbed from the complainant. In effect, the Appellant’s defence was that he was a victim of mistaken identity.

The Appellant was convicted essentially on the application of the doctrine of recent possession. It was the prosecution’s case that the Appellant was found in possession of the motor vehicle which had been robbed from the complainants. The Appellant was found in possession of the motor vehicle less than an hour after the motor vehicle had been robbed from the complainants. As was held by Bosire J (as he then was) in Malingi –Vs- Republic [1989] KLR 225 at P.227:

“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 have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the 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 circumstances of the case, recent; that there are 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 a rebuttable 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.”

Upon re-evaluation of the facts of this case, we cannot fault the trial court for applying the doctrine of recent possession to convict the Appellant. Although the Appellant was not identified by the victims of robbery, soon after the robbery, the complainants made a report to the police. The registration number of the motor vehicle was circulated to all police officers. PW4, while on patrol within Dandora Area saw the motor vehicle. The Appellant was driving the motor vehicle. The police disabled the motor vehicle by shooting its tyres. The Appellant was arrested in the driver’s seat. He was arrested less than an hour after the robbery. He did not give an explanation of how he came to be found in the motor vehicle which had been robbed from the complainants. The explanation he gave that he was a victim of mistaken identity does not hold because he explained he was elsewhere other than inside the motor vehicle where he was arrested by PW4. The trial magistrate properly applied the doctrine of recent possession. The defence of the Appellant was properly considered by the trial court, as we have also considered on this appeal. It does not exonerate the Appellant from the crime. The grounds of appeal put forward by the Appellant do not raise any issues that would lead this court to alter the finding of the trial court.

In the premises therefore, we hold that the prosecution established the charge of Robbery with Violencecontrary to Section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt. The Appellant, while in company of others, robbed the complainants of their motor vehicle. In the course of the robbery, they threatened the complainants using a pistol, which is a dangerous weapon. The Appellant’s appeal therefore lacks merit and is hereby dismissed. The conviction and the sentence of the trial court is hereby upheld. It is so ordered.

DATED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2013.

L. KIMARU

JUDGE

P. NYAMWEYA

JUDGE