[2022] KEHC 13846 (KLR)

Khaoya & another v Prosecutions (Criminal Appeal 25 of 2020) [2022] KEHC 13846 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13846 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 25 of 2020

WM Musyoka, J

October 7, 2022

Between

Sadat Hussein Khaoya

1st Appellant

Musa Murono Makokha

2nd Appellant

and

Director Of Public Prosecutions

Respondent

(Being an appeal from the judgment of Hon. F. Makoyo, Senior Resident Magistrate, in Butere SRMCRC No. 244 of 2019, delivered on 15th July 2020)

Judgment

1. The appellants, Sadat Hussein Khaoya and Musa Murono Makokha, were convicted on July 15, 2020, of burglary and stealing, contrary to sections 304(2) and 279(b) of the Penal Code, Cap 63, Laws of Kenya, and were sentenced, on the same date, to seven (7) years imprisonment, for both offences, to run concurrently.

2. The charge alleged, on the main count, of burglary, that on the night of January 18, 2019, at Lukoye Estate, Township Sub-Location, Nabongo Location, in Mumias West Sub-County, within Kakamega County, jointly with others before the court, they broke and entered into the dwelling house of Teresa Achieng Odera, the complainant, with intent to steal and they stole from that house, assorted items, all valued at Kshs 178, 095. 00 the property of the said Teresa Achieng Odera. The alternative charge was that on January 18, 2019, at Shibale Market, Township Sub-Location, Nabongo Location, in Mumias West Sub-Location, within Kakamega County, other than in the course of stealing, they dishonestly retained two flash discs, make San disk and Galactic, knowing or having reason to believe them to be stolen goods.

3. The appellants denied the charges, and a trial ensued, the respondent called 4 witnesses. PW1, Kenty Nana Ogutu, was a neighbour of the complainant. She was woken up, by screams from the caretaker, at 2. 00 AM on January 18, 2019. She telephoned him, and was informed that thieves had broken into the house of the complainant. She telephoned the police. One of the intruders was apprehended at the scene. She stated that she did not leave her house, and did not witness the theft. She also stated that she only saw the person who was apprehended at the scene. He got injured as he tried to escape, and there was blood at the scene. A television set, a suit case and an electronic device were recovered, and she identified them.

4. Stephen Omondi Omari testified as PW2. He was the caretaker of PW1’s premises. He heard movement in the compound on January 18, 2019 at 2. 00 am. He went outside and saw someone walking around the compound, and eventually enter the house of the complainant. When the intruders saw him, three of them jumped over the fence. He saw the items that the persons tried to get over the fence. He mentioned a television set. He said that the items were not taken out of the compound. He mentioned that a padlock was broken, and that he was inside his house when the house of the complainant was broken into. He stated that there was electric light and one of the persons had a torch.

5. The complainant testified as PW3. She testified that on January 12, 2019 she had locked her house, and left for Nyeri. On January 18, 2019, at 2. 00 am, she received a telephone call from PW1, informing her that her house had been broken into. She contacted the police, and informed them- about it, and police officers went to the scene. A suspect was arrested within the compound, and some items were recovered, again within the compound. She mentioned the stolen items as a Samsung television set, a Sony home theater with 5 speakers, 2 flash discs, a television adapter, assorted clothes, a St. Mary statue, a rosary, a sculpture of an African woman, a suitcase, two pairs of spectacles, 2 remote controls and a padlock. She put their value at Kshs 178,095. 00. A padlock had been broken. She later visited the Mumias Police Station to confirm the report made there by PW1. At the station, she found all the items, having been recovered, safe for the two remote controls, the television adapter and the 2 pairs of spectacles. She said that she was not at scene at the time of the incident, so she did not see anyone commit the offence.

6. PW4, Number 120026 Police Constable Raymond Omollo, was the last witness. He visited the scene of the crime after the police got the report of the incident. He found a suspect who had been cornered, one Collingstone Ochieng. He established that the intruders were 8 in number, and 7 had escaped. He also established that the door to the house was forcefully opened, after a padlock was damaged. He found household items left at the scene, near a fence and septic tank. The following day, he got a tip-off, that two individuals were asking someone to format for them 2 flash discs, to replace the contents with music, and in the process of that person doing so, he noted court documents, and contacted the police. PW4 went to the scene and apprehended the 2nd appellant. It was the suspect apprehended at the scene who mentioned the 1st appellant and others.

7. Upon being put on their defence, the appellants, and their co-accused, gave sworn statements. The 1st appellant, as DW1, testified that he slept at home on January 18, 2019, and that he was arrested in June 2019. He said that he did not know Collingstone Ochieng. On his part, the 2nd appellant, as DW3 testified on what he was doing on January 18, 2019, at 10. 00 AM, when he was arrested. He denied being found with flash discs at the time of his arrest.

8. The trial court framed 3 issues: whether PW3’s house was broken into; whether property was stolen from the said house; and whether the appellants, among others, were responsible for the burglary and theft. The court concluded that there was overwhelming evidence on the first two issues. On the third issue, the court mentioned the testimony of PW2, that he saw the 1st appellant on that material night, with the aid of security lights. The trial court also relied on the fact that one of the suspects, Collingstone Ochieng, was cornered at the scene, and upon being charged, pleaded guilty was and sentenced on May 13, 2019, and PW4 had testified that the said Collingstone Ochieng had implicated the appellants, among others, as his accomplices. The trial court stated that it believed that PW1, PW2, PW3 and PW4 were truthful witnesses, whose testimonies were not shaken at cross-examination. The trial court also warned itself of the dangers of relying on the unsupported testimony of a co-accused person, terming it as the weakest of evidence, and cited Anyuma s/o Omolo & Another v Republic[1953] 20 EACA 218 and Republic v Wadingombe Bin Mkwanda & others [1941] 8 EACA 33.

9. The appellants were aggrieved, hence the appeal. In his amended grounds of appeal, the 1st appellant averred that the trial court did not consider the probability of positive identification at the scene; relying on the evidence of a single witness; failure to call a vital and crucial witness; failure to consider inconsistencies and contradictions in the evidence; and rejecting his alibi defence. On his part, the 2nd appellant avers that the charge was defective; the evidence was inconsistent, malicious, farfetched and uncorroborated; the trial offended section 198(4) of theCriminal Procedure Code, Cap 75, Laws of Kenya; Article 50(2) of the Constitutionwas offended; burden of proof was shifted; and his alibi defence was not considered.

10. Directions were given on December 18, 2020 and October 4, 2021, for canvassing of the appeal by way of written submissions. I have on record written submissions by the appellants, but not by the respondent.

11. In his written submissions, the 1st appellant addressed 4 issues: identification at the scene, the non-calling of a critical witness, inconsistent and doubtful evidence, the shifting of the burden of proof, and defence not considered. On identification, he focuses on the testimony of PW2, touching on the lighting, opportunity to identify, among others. He cites Etudebo & others v Republic of Uganda [2009] EA 32,Jai Kazungu Gona v Republic [2017] eKLR, Wamunga v Republic [1989] KLR 424, Maitanyi v Republic [1986] KLR 198, Hassan Abdallah Mohammend v Republic[2017] eKLR and Abdallah bin Wendo v Republic[1953] 20 EACA 166. He submitted that the conditions were not adequate for PW2 to identify him. On the witnesses not called, he submitted that the neighbours who allegedly responded to the alarm were not called, and Stephen Omondi Ouma, who had given a tip-off to the police had not been called, yet the case against the 2 appellants is built around the said tip-off. He cites Peter Gitao Muchene v Republic 364 of 2006 and Bukenya & others v Uganda [1972] EA 549. He also submits that no identification parade was conducted, yet the same was critical in view of the testimony anticipated from PW2. On inconsistencies and contradictions, he points at inconsistencies on when the first report of the incident was made to the police. He cites Dinkerrai Rannkeshna Padya v RepublicAppeal No 106 of 1990 EACA 93 and Richard Aspella v RepublicNo 45 of 1981. On burden of proof being shifted, it is submitted that the evidence on identification was not cogent, and critical witnesses were not called, to wit PC Marcellus Okeyo and Stephen Omondi Ouma. He cites Philip Muiru Nganga v Republic Cr. Appeal No 76 of 2012 eKLR.

12. On his part, the 2nd appellant raises several issues. He submits that there was no proof that the house of PW3 was broken into and her property stolen. He also submits that no evidence was presented to prove that the flash discs put in evidence belonged to PW3. He also submits that the evidence on the recovery of the flash discs was not watertight. He further submits that the case against him was built on a tip-off, yet the person who tipped off the police was not called as a witness. He further submits that no recovery inventory was presented. On the matter of the burden of proof being shifted to him, he cites Stephen Charo Mavuo v Republic [2015] eKLR.

13. Am alive to the fact that I did not have benefit of seeing and hearing the witnesses who testified in this matter and, therefore, I did not have the benefit of observing the demeanour. It is the trial court which heard and saw them, and had a chance to draw conclusions on them based on what it saw and heard.

14. In the judgment of July 15, 2020, the trial court properly captured the ingredients or elements or essence of the offences of burglary and theft, as defined in sections 304(1) and 279(b) of thePenal Code. The elements being, that a dwelling house was broken into, at night and a theft was committed in that house. From the evidence on record, the house in question was the dwelling house of PW3. There is evidence, from the testimonies of PW1, PW2, PW3 and PW4, that the dwelling house was broken into. A padlock was damaged to facilitate access to the house. The break-in happened at night, going by the testimonies of PW1, PW2, PW3 and PW4. All these witnesses put the time of the incident at 2. 00 AM, on the night of 18th January 2019. That then made it a burglary, as opposed to house-breaking. There was theft. PW1, PW2 and PW4 testified that items were stolen from the dwelling house of PW3, and were recovered within the compound, at the fence and near a septic tank. Theft is committed when items are taken away from the owner. The removal of goods or property from the dwelling house of PW3 amounted to a theft, for the removal of the said items was done without her consent, and with intent to deprive her permanently of the said goods or property. From the record, therefore, there is adequate proof that there was a burglary and a theft.

15. What is lawfully contentious is the involvement of the appellants in the commission of the burglary and theft. Both appellants are contending that there is no evidence connecting them to the said commission.

16. One issue raised in the grounds of appeal is about the charges being defective. I note that none of the appellants have submitted on the matter of the charges being defective. I have carefully perused through the charge sheet, and I have not seen anything suggesting that the charge is defective in any way. The same is properly drafted, and it covers all the elements of the offences created under sections 279(b), 304(2) and 322(1)(2) of the Penal Code.

17. The other issue is about identification. The 1st appellant was convicted on the basis that he was identified by PW2, was mentioned by his co-accused, Collingstone Omondi, and the alleged fact that PW4 saw him escape from the scene where the 2nd appellant was arrested. Let me start with the identification of the 1st appellant by PW2. The testimony of PW2 was that he got out of his house after he sensed movement outside, and saw 3 individuals. He told the court the one who had a torch was the 1st appellant. It was at night. He said electric security lights helped him with the identification. Yet he did not point out any particular features on the person that he saw that led him to conclude that that person was the 1st appellant. No identification parade was conducted, for he to pick the 1st appellant. This was a dock identification, for he conceded that he did not deal with identification in his statement to the police. It was not a case of recognition, for he did not say at all whether or not he knew the 1st appellant prior. Dock identification is a weak form of identification. I am not persuaded that the circumstances, on January 18, 2019 at 2. 00 AM, were adequate for PW2 to have identified the 1st appellant.

18. The other witness to talk about the identification of the 1st appellant was PW4, the police officer. He talked of a tip-off, by a person who was not called as a witness. He went to where that person was, where 2 appellants were said to be, but the 1st appellant allegedly fled. PW4 did not state whether he found the 1st appellant with that person. He gave no description of the 1st appellant. His testimony was, therefore, wanting, in so far as connecting the 1st appellant to the flash discs that had been taken for formatting. More crucially, the person who acted as the tip-off, that is the person who was dealing with the appellants directly, was not called to the witness stand. He was said to have fled after being threatened by the 2nd appellant. His statement was produced instead. That was not adequate. It is trite law that an accused person is entitled to confront his accusers. The appellants were not given that chance, and they were convicted on the basis of evidence that they did not have opportunity to test by way of cross examination. The respondent ought to have put the alleged witness on witness protection, and availed him to testify virtually, without him having to make a physical appearance at the courthouse. The failure to call that witness was a major gap in the prosecution.

19. Regarding the 1st appellant, I am not persuaded that the trial court had sufficient evidence upon which it could convict him. The identification evidence did not reach the required threshold of proof beyond reasonable doubt. It is not evidence that the trial court should have used to convict the 1st appellant in the absence of any other evidence.

20. The other piece of evidence used to link the 1st appellant to the offence is the incrimination by his co-accused, Collingstone Ochieng. It is PW4, the police officer, who testified on that. No documentary proof was provided, in terms of a statement taken by the police from him, which connected the 1st appellant to the offence. None was placed on record. When the said Collingstone Ochieng was presented in court on 31st January 2019, to take plea, and pleaded guilty, he did not make a statement implicating the 1st appellant. Neither was Collingstone Ochieng, upon his pleading guilty, presented as a State witness against the 1st appellant. As it is, there is nothing concrete as proof that the said Collingstone Ochieng implicated the 1st appellant as an accomplice. The trial court only had an oral statement from PW4 which was not backed by any other evidence. Am alive to the legal position that evidence of an accomplice against a co-accused is the weakest of evidence, but it is still evidence, to be taken together with other evidence. Overall, I do not find any material upon which the trial court could hold that Collingstone Ochieng, who was accused 1, provided any evidence, which implicated the 1st appellant.

21. On the identification of the 2nd appellant, I note that the respondent relied only on the testimony of PW4, for none of the other witnesses made any mention of the 2nd appellant. On the implication of the 2nd appellant by Collingstone Ochieng, I reiterate what I have stated above, that other that what PW4 told the court, that Collingstone Ochieng implicated the 2nd appellant, among others, there is no other concrete evidence to support that contention. Secondly, PW4 talked of a tip-off from Stephen Omondi Ouma. Again, I reiterate what I have stated above. Stephen Omondi Ouma was not called to the witness stand to testify that the 2 appellants approached him with the 2 discs, seeking to have them formatted, and it was upon opening them that he found material suggesting that the discs did not belong to the appellants, and that, based on that, he decided to involve the police. It was the actions of Stephen Omondi Ouma that brought the police to the scene, and it was the only credible link between the 2nd appellant and the crime. The omission to call him was fatal. It left a gap that the testimony of PW4 could not fill. There was no evidence, therefore, that it was the 2nd appellant who had possession of the said flash discs, and that he had approached the said Stephen Omondi Ouma for re-formatting, and that the said flash discs contained rulings and judgments, and other court documents. Without testimony from Stephen Omondi Ouma, whatever PW4 told the court amounted to mere hearsay evidence.

22. On inconsistencies in the evidence, the 1st appellant pointed at some notes on the charge sheet, stating that the offence was reported on February 3, 2019 vide OB 15/3/2/19, yet the witnesses testified to reports being made to the police on January 18, 2019

23. The other issue raised by both appellants is that the trial court shifted the burden of proof to them. I have read through their written submissions, and I am not persuaded that they have demonstrated that the trial court shifted the burden of proof to them in any way. Related to that is the ground that their defences were not considered. The defences of the appellants were recited in the judgment, at pages 4 and 5. The trial court did not, however, evaluate the alibi defences, and decide either way whether they were credible or not. The 1st appellant claimed to have been at home with his family on the material night. However, that, of itself was not adequate, to conclude that the defences were not considered. The trial court did not ignore them, for it is on record, in the judgment, that they were recited, and they must have been prime in the mind of the trial court, in its consideration of all the available evidence.

24. On lack of an inventory of the recovered items, it is trite that it is not a requirement of the law that an inventory be put in evidence, in every criminal case where recoveries have been made. An inventory is a tool created by the police to aid them in the course of investigations. The police are not obligated to generate one in all cases of recovery, and where they do generate one, there is no obligation that the same should be put in evidence as part of the prosecution case. The omission to generate an inventory or to present one in court is not fatal to the prosecution’s case.

25. In view of what I have stated above, it is my conclusion that the respondent did not establish a case against the appellants to the required standard, on the basis of what I have stated above. I shall accordingly quash the conviction, and set aside the sentence. The appellants shall be set free, unless they are otherwise lawfully held.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7thDAY OF OCTOBER,2022W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Saddat Hussein Khaoya, 1st appellant, in personMusa Murono Makokha, 2nd appellant, in person.