[2017] KEHC 3010 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL. NO 232 OF 2014

KICHAM PULLUNG……….APPELLANT

VERSUS

REPUBLIC…………….…..RESPONDENT

(Being an Appeal from Original Conviction and Sentence in Criminal case No 409 of 20163 By Hon. T.A.Odera (RM) sitting at Mavoko Law Courts dated 11th August, 2014)

JUDGEMENT

INTRODUCTION

1. The Appellant was charged with the offence of Robbery with Violence contrary to Section 295 of the Penal Code as read with Section 296 (2) of the same code. The Particulars of the offence were that on 24th of February 2013 at Kitengela Township area in Kajiado County the accused together with two others jointly robbed the Elijah Makesi Mkongo a cell phone make Samsung E0168 serial number 3588-89/04/716564/8 and cash Kshs 5000/= all valued at Kshs 7500/= and at the time of such robbery with violence assaulted the said Elijah Makesi Mkongo.

The appellant also faced an alternative charge of handling stolen property contrary to Section 322(1) as read with Section 322(2) of the Penal Code Act based on the same particulars.

2. The appellant denied the charges and a plea of not guilty was entered on 29/4/2013. The Prosecution called nine (9) witnesses and the accused left it to court to decide the matter without calling any witness. The Trial Magistrate having been satisfied that the prosecution had proved its case beyond reasonable doubt proceeded to convict and sentence the accused to death as stipulated by the Penal Code for the offence committed.

3. The appellant being dissatisfied by the decision of the trial court appealed against the judgment on the following grounds;

a. THAT, the charge was defective in nature.

b. THAT, the learned Trial Magistrate erred in fact and in law by convicting the appellant on a duplex charge hence fatally infringed his right to a fair trial prescribed in Article 25(c) and 50(2)(a) of the Constitution.

c. THAT, the prosecution did not adduce incontrovertible and conclusive evidence as proof that the phone belonged to PW-1 the complainant herein.

d. THAT, the learned Trial Magistrate erred in law and fact while relying on the doctrine of recent possession which prosecution never proved the positive identity of the alleged stolen phone.

e. THAT, the Learned Magistrate misdirected himself in fact and law by convicting him on a balance of probabilities contrary to the well known requirement in criminal law that proof has to be beyond reasonable doubt and hinged the conviction on circumstantial evidence basing on the doctrine of recent possession which was not proved by the prosecution.

f. THATthe Learned Trial court erred in law in upholding the conviction of the appellant based on insufficient evidence of recent possession.

4. Both the Appellant and the Respondents filed their written submissions in response to the issues raised.

APPELLANT’S SUBMISSIONS

5. The Appellant filed submissions not dated but filed in court on 3/5/2017. In his submissions he submitted on the various grounds on why he thought the Trial Magistrate erred. On the first ground he submitted that the charge the appellant was convicted on was defective. He relied on Section 214 (1) of the Criminal Procedure Code on variance between the charge and evidence and amendment of charge.

“Where, at any stage of trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form (emphasis), the court may make such order for the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.’’

On this he went on to submit that court has the discretion to consider the substance of the evidence adduced. He indicated that court had overlooked this fact because there were two different phones mentioned in the proceedings.

6. He went on to state that PW1 had given evidence at Page 13 line 3 of the proceedings as pertains to a Samsung mobile phone model GTE 1085F with Serial No.SN358889047165646 while the phone details in the charge sheet were Samsung E0168 Serial No.358889/04/716564/8 .In this regard he indicated that this were two different phones and that PW9 the Investigating Officer wanted to bring the issue of bad character evidence when he testified that he knew the appellant from back in 2009 when he had escaped from police cells in Kitengela Police Station. He was later re-arrested at Mlolongo and arraigned in Machakos Court where he was jailed for 6months.He went on to say that court should not have accepted the bad character evidence since there was no proof presented that he was indeed imprisoned. He went on to rely on David Njoroge Macharia- Vs-Republic (2011) eKLRwhere it was stated that;“Under Section 361 of the Criminal Procedure Code only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrately to have acted on wrong principles in making the findings.’’

7. The appellant went on to submit that the court should not have mentioned the phone in the charge sheet if no evidence was available. He cited the case of Juma- Vs-Republic (2003)EA 471 where it was stated ;

“………That in charging a person under Section 296(2) of the Penal Code, the prosecution must be extremely careful as the consequences of convicting a person are serious. Care must be taken when dealing with drafting of charges as it is the life of an individual which is at stake.’’

8. Further on this ground the appellant argued that the lower court misapprehended the facts of the case and therefore made a wrong finding he went on to rely on Section 163(1)(c)of the Evidence Act (Cap 80) which states;

(1) The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him.

(c) by proof of former statements, whether written or oral, inconsistent with any part of his evidence which is liable to be contradicted.

He proceeded to indicate that the Lower Court Trial Magistrate erred in points of law by convicting him on contradictory, incredible, unreliable and scanty evidence in breach of the provisions of law in Section 163 of the evidence Act (Supra) and therefore the case ought to have been decided in his favour as was in the case Vincent Kasyula Kingoo- Vs- Republic (2014) that;”major contradictions in the prosecution evidence should be resolved in favour of the accused ‘He went on to also quote Charles Kiplangat Ngeno-Vs-Republic; CR.APP.No. 77 0f 2009 (UR)where the appellate court upon reconciling contradictions and inconsistencies in the prosecutions’ case rendered the entire prosecution evidence on the record unbelievable thereby resulting in the reversal of the appellant’s conviction for an acquittal.

9. He submitted that the Trial Magistrate had erred in trying to fill in the gaps for the prosecution or rather had made a conviction based on an assumption quoting the case of Oketh Okale –Vs-Republic. 555 EAwhere it was held;

“it is very dangerous and in advisable for a trial judge or magistrate to create his own theories not canvassed in the evidence.’’

This was the position also inBurunyi and Another-Vs- Uganda CR.APP No.1968 E.A

10. In conclusion the Appellant submitted that the principles of trial as laid out by Nyamu J were not followed in arriving at his conviction. Republic –Vs- Subordinate Court of the 1st Class Magistrates and Another Exparte Younginder Pall Sennik and Another (2006) eKLR laid out the principles of trial as follows;

Right to equality before law

Right to presumption of innocence

Right to equality of arms in adversarial proceedings

Right to be tried by a competent, independent and impartial court.

11. On the appellants ground of appeal no 2 the appellant submitted that he was charged under a duplex charge and a defective charge sheet. He indicated that he was charged with the offence of robbery with violence and charged under Section 295 as read with Section 296(2) of the Penal Code instead of Section 296(2) alone which provides the ingredients of the offence correctly.

12. He went on to submit that it is not the duty of the court to rectify errors and omissions caused by the prosecution when charging a suspect as was the position held in Burunyi –Vs- Uganda (Supra);

“It is not the duty of the court to stage manage cases for the prosecution nor is it its duty to endeavor to make a case against an accused person where there is none. The duty of the court is to hold the case to see that Justice is done according to the law on evidence before it.’’

In the same regard he indicated that the court had the mandate under Section 214 of the Criminal Procedure Code to ensure that the charge sheet was rectified. Ordering a retrial will amount to torture to the appellant and he will not be compensated for the time wasted and psychological torture .He went on to state that this was a serious omission which could not be cured by Section 382 of the Criminal procedure Code.

13. In conclusion therefore the Appellant submitted that the charge sheet he was convicted on failed to spell out with clarity the exact offence he was charged with, and therefore that was an incurable omission and therefore a violation of the provisions of Section 134 & 135 of the Criminal Procedure Code. He also went on to say that his right to a fair trial as spelled out by Article 50 of the Constitution of Kenya and his right to plea as set out by Section 207(1) of the Criminal Procedure Code was infringed because he failed to defend himself .He prayed to court not to order a re-trial since the case would not lead to a conviction. He placed reliance on Yongo-Vs-Republic (1983) KLRwhere it was held that the trial court had ample time and opportunity to either amend and /or substitute the state defects and this was not done,therefore rendering the charge sheet incurably defective in the final analysis.

14. On the ground of Doctrine of Recent Possession the appellant placed reliance on the Court of Appeal case that outlined the principles governing the doctrine of recent possession Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga-Vs-Republic, Criminal Appeal No.272 of 2005 the court held that;

“It is trite law that before a court of law can rely on the doctrine of recent possession as a basis for 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 the 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.’’

Section 4 of the Penal Code Act defines possession of a stolen item to be as follows;

a. “be in possession of ‘or ‘have in possession’ includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for use of benefit of oneself or of any other person.’’

15. The appellant went on submit that the prosecution had failed in its duty of proving that the phone alleged to have been stolen is the same one that was found in the appellants possession. He further indicated that PW9 in his evidence stated that they used a code given by Safaricom to locate the alleged phone in Loitoktok; he begged to ask the question why Safaricom had not produced any data to ascertain the tracing of the phone. He therefore said that the prosecution had failed in not producing the certified computer prints as stipulated by Section 65(8)(b) and (c) of the Evidence Act and therefore he prayed for an acquittal since the trial court had failed in failing to consider the gaps in the prosecution’s case.

16. The appellant went ahead in faulting the Trial magistrate’s decision based on circumstantial evidence and he relied on the case of Sawe- Vs-Republic (2003) KLR 354 where Court of Appeal considered when circumstantial evidence can form a basis of conviction “…the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.’’ The same case went on to state that “Suspicion, however strong cannot provide the basis of inferring guilty which must be proved by evidence beyond reasonable doubt.’’

17. Still on the issue of circumstantial evidence the appellant went on to argue that the period between when the complainant lost the phone and the period he was in possession of the phone was 2 months.PW3 alleged at page 16 line 8-9 of the proceedings that on 27/4/3 she was at home when the police officers came to her home and arrested her and the son. On the other hand PW-1 stated at page 12 line 16 of the proceedings that on 24/2/13 at 9;30 pm, he was from work heading home ….while walking he was hit on the head from behind and he lost consciousness. He relied on Republic-Vs- Taylor Weaver & Donovan (1928) 21 CR DPP R 20where it was held that; “Circumstantial evidence is very often the best experience. It is evidence surrounding circumstances which by intensified examination is capable of providing the preposition with the accuracy of mathematics. It is not derogation of evidence to say it’s circumstantial.

18. In conclusion he cited the case of Abanga alias Onyango-Vs- Republic Criminal Appeal No.32 of (1990)(UR),at page5which laid out the three tests for circumstantial evidence as follows;

The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established,

Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused,

The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

He submitted that the three principles laid out were not adhered to because the circumstances from which an inference of guilt was drawn was not clearly drawn and firmly established because the phone he gave to PW-3 did not belong to PW-1. He prayed to court to allow the appeal to succeed.

RESPONDENT’S SUBMISSIONS

19. The respondent in his submissions dated 17th July, 2017 and filed on 24th July 2017 responded several issues. The first ground was on whether the charge sheet was defective. He relied on the case of Joseph Maina Mwangi –Vs- Republic Criminal Appeal No.73 of 1993where the court ruled that;

“In any trial there are bound to be discrepancies .An appellate court in considering those discrepancies must be guided by the wording of Section 382 of the Criminal Procedure Code whether such discrepancies are such as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.’’

20. Learned Counsel for the prosecution went on to indicate that the discrepancies and the inconsistencies in the prosecution were mainly on the serial number of the complainant’s mobile phone. He went on to state that this was a discrepancy that was cured by PW-1 when he identified the mobile phone recovered belonged to him and the same evidence was corroborated by PW-3 and PW-5 who confirmed that the recovered phone had been brought by the Appellant to PW-3 as a gift and therefore the discrepancies did not prejudice the appellant in any way.

21. In view of the foregoing prosecution went on to submit that the ground of appeal was misconceived, unfounded, unmeritorious and baseless and the appeal should be dismissed.

22. On the issue of the duplex charge he relied on Section 134 of the Criminal Procedure Codeon what constitutes a good charge.

“ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’’

He went on to state that the appellant having been charged with the offence of robbery with violence the elements of the offence were outlined in the particulars of the offence and he therefore pleaded to one charge of robbery with violence and not any other. Both the statement and particulars of the offence were stated in an unambiguous manner and as a result the appellant was not prejudiced in any way and his contentions cannot warrant nullification of the trial as the same is curable under Section 382 of the criminal Procedure Code.

23. Ground number two submitted on by the prosecution was on whether the prosecution had proved its case beyond reasonable doubt. He went on to identify the three ingredients of robbery with violence as laid out by Section 296(2) of the Penal Code as;

a. “If the offender is armed with any dangerous or offensive weapon.

b. If he is in the company with one or more other person or persons

c. If at or immediately before or immediately after the time of the robbery uses any other personal violence to any person’’

The same circumstances were also elaborated in the case ofOluoch –Vs-Republic (1985) KLR.

24. Based on the above ingredients the prosecution went on to submit that the evidence adduced was clear that PW-1 was attacked on 24/02/2013 and he was robbed of the sum of Kshs 5000/= and a Samsung Mobile phone model GTE 1085F serial no SN358889047165646 which he identified positively in court.PW-1 further testified that as a result of the injuries sustained he was admitted in hospital for a month while undergoing treatment. He also went ahead to produce the discharge summary and P3 form as proof of treatment. The evidence of PW-1 having been attacked was corroborated by PW-2 his wife and further by PW-6 the clinical officer who produced the P3. Pw-3 testified that the appellant who was her son gave her a mobile phone which she gave to her daughter, she positively identified the mobile phone as the one PW-1 had claimed was stolen from him. They were arrested on 27/04/2013 .PW-8 the police officer testified that he tracked the mobile phone belonging to PW-1 to Loitoktok and found it in possession of PW-5 who claimed to have been given by PW-3 who later informed police that she had been given by the Appellant.

25. In conclusion the prosecution indicated that it was the appellant who had given the mobile phone to his mother, the mobile phone belonged to the complainant and when it was stolen there was use of violence by the assailant. Therefore the doctrine of recent possession was positively proved since the property was found with the Appellant, secondly the property was positively identified by the complainant , thirdly the property was recently stolen from the complainant and lastly the property was stolen from the complainant recently .Gideon Meiitekin –Vs- Republic (2013)eKLR(Criminal Appeal No.297 of 2012. )

26. The last ground submitted on by the prosecution was on whether the Trial Magistrate had erred in relying on the doctrine of recent possession. He relied on the grounds set in proving the doctrine of recent possession as set out in Gideon Meiitekin –Vs- Republic (Supra) where it was held that the doctrine of recent possession is positively proved when the property is found with the suspect, secondly the property is positively that property of the complainant, thirdly the property was stolen from the complainant and lastly the property was stolen from the complainant recently.

27. Looking at the evidence of PW-1 he produced purchase receipt which had a serial number to show that indeed the phone recovered belonged to him. Further the evidence of PW-3 and PW-5 proved that it was the appellant who gave them the phone two months after it had been stolen although it had been presented to PW-2 at an earlier date. From the foregoing the prosecution went ahead to state that all the ingredients were proved beyond reasonable doubt and prayed to court to dismiss the appeal and court to uphold both the conviction and sentence of the trial court, since the evidence tendered was credible and consistent and well corroborated.

DETERMINATION

28. This being a first appeal I am guided by the principle laid in OKENO –VS- REPUBLIC [1972] EA 32 ). I am therefore required to re-evaluate the facts afresh, assess it and make my own independent conclusion. I have considered the appeal and the submissions tendered herein. The main issues that falls for determination are:

a. Whether indeed there was duplicity of charges?

b. Whether the offence of robbery with violence was proved;

c. Whether the doctrine of recent possession was correctly applied in the circumstances of this case; and, therefore,

29. The first issue to resolve here is whether indeed there was duplicity of the charges. What constitutes a good charge is explained under Section 134 of the Criminal Procedure Code which reads as follows:

‘’Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged’’.

Section 135 (1) & (2) provides for instances where Joinder of counts in charge or information is allowed. They read as follows:

1. ‘’Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

2. Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count’’.

From the above provisions it is correct to state that duplicity of charges would occur in instances where more than one offence is charged in one count. In our instant case the appellant was charged with the offence of robbery with violence under Section 295 as read together with Section 296(2) of the Penal Code Act. Section 295 of thePenal Codeprovides as follows:

"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery".

On the other hand, Section 296 of the Penal Code states as follows:

"(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

30. In the case of Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, where a five Bench decision of the Court of Appeal after considering a number of cases, stated as follows:

"We reiterate what has been stated by this Court (sic) in various cases before us: the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides that any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge".

Based on the foregoing, it would therefore be in order to admit that indeed the charge was duplex and the Appellant ought to have been charged under Section 296(2) of the Penal Code alone.

31. On the issue of whether the offence of robbery was proved. ingredients of the offence are set out very clearly under Section 296(2) of the Penal Code and further in the case of Oluoch v Republic, (1985) KLR 549 Court of Appeal, at Kisumu December 7, 1984 Chesoni, Nyarangi & Platt Ag JJA) (Obiter) held that the offence of ‘robbery with violence is committed in any of the following circumstances: a)The offender is armed with any dangerous and offensive weapon or instrument; or b)The offender is in company with one or more other 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.’ .

32. Looking at our facts we find that the indeed there was proof of injuries on the complainant, despite the fact that when he was hit he fell down and was not able to see the attacker. The appellant was found with the complaint’s phone and he was not able to rebut the assertion by the prosecution that indeed he was the robber and the one who assaulted the complainant. Based on the foregoing I therefore find that the offence of robbery with violence was positively proved. The Appellant did not render an explanation as to how he came to be in possession of the stolen mobile phone which had been recently stolen from the complainant. The Appellant’s mother confirmed that indeed it was the appellant who brought the mobile phone and gave it to her. The mobile phone was property that had been recently stolen from complainant during a robbery.

On the last ground on whether the doctrine of recent possession was well applied ,I will rely on the principles set out in Erick Otieno Arum v. R(2006) eKLR, the Court of Appeal (Tunoi, Okubasu and Onyango Otieno, JJA) held:

“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. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the alleged stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. In case the evidence as to search and discovery of the stolen property from the suspect is conflicting, then the court can only rely the adduced evidence after analyzing it and after it accepts that which it considers the correct and honest version.”

33. The appellant was found in possession of the complainant’s phone which was positively identified in court by the witnesses. Despite the period having been 2 months between when he was arrested and when the incident happened I find that a phone is a commodity that change hands very easily. The evidence of PW- 3 and PW-5 was so consistent and all evidence pointed to the appellant having been in possession of the phone. A factor which he did not rebut. Hence the doctrine of recent possession is clearly applicable and therefore the appellant was no doubt one of the robbers who had attacked and robbed the Complainant on the material date. I find the trial Court’s conviction and sentence was properly arrived at and ought not to be disturbed.

34. In conclusion therefore I do find that the appeal has no merit and is dismissed. The conviction and sentence by the trial court is upheld.

It is so ordered.

Dated, signed and at MACHAKOS this 12th day of October, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Kicham Pulling for the Appellant

Saoli for the Respondent

Kituva: C/A