[2022] KEHC 14782 (KLR)

Kinyua v Republic (Criminal Appeal E131 of 2021) [2022] KEHC 14782 (KLR) (Crim) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14782 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E131 of 2021

K Kimondo, J

November 4, 2022

Between

Jackson Wachira Kinyua

Appellant

and

Republic

Respondent

(Appeal from the judgment of Z. Abdul, Senior Resident Magistrate, in Milimani, Nairobi Criminal Case No. 385 of 2017 delivered on 23rd September 2021)

Judgment

1. The appellant challenges his conviction and sentence for the felony of robbery with violence.

2. The particulars of the main charge read-"On February 8, 2017 at Westlands Area within Nairobi County, jointly with others not before court while armed with dangerous weapon, namely pistol, robbed James Githaiga Chege of a motor vehicle registration number KCJ 709D Toyota Fielder valued at Kshs 1,333,000, three mobile phones make samsung tablet valued at Kshs 25,000, samsung J2 valued at Kshs 12,000, Huawei valued at Kshs 10,000, and withdrew Kshs 4,350 from his mobile number from an Mpesa agent all valued at Kshs 1,394,350 and during the time of the robbery threatened to use actual violence against the said James Githaiga Chege."

3. The petition of appeal raises four grounds. Firstly, that the learned trial magistrate erred in finding that the doctrine of recent possession applied in this case; secondly, that there was no evidence that PW2 purchased a mobile phone from the appellant; thirdly, that the appellant was not positively identified; and, fourthly, that there was no evidence connecting the appellant to the scene of the robbery.

4. At the hearing on October 7, 2022, learned counsel for the appellant relied wholly on his written submissions dated July 8, 2022 and the annexed precedents.

5. In a synopsis, the appellant contends that the offence was not proved beyond reasonable doubt.

6. The appeal is opposed through grounds of opposition dated September 19, 2021 and the skeleton submissions dated September 19, 2022. In a nutshell, the case for the state is that all the ingredients of the offence were proved; and, that the sentence meted out was lawful.

7. This is a first appeal to the High Court. I have re-evaluated all the evidence and drawn independent conclusions. I remain cognizant that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic[1972] EA 32, Kariuki Karanja v Republic [1986] KLR 190.

8. The complainant, James Chege (PW1), was employed as a taxi driver by Catherine Mwaniki (PW3), the owner of motor vehicle KCJ 709D (exhibits numbers 5 and 6). On the night of February 8, 2017, he was lured by an unknown customer to ferry him from Westlands to Komarock.

9. Along the Komarock-Kangundo road, the customer asked him to stop. It was a ruse: two persons armed with a pistol appeared and entered the car from both front doors; they manhandled him and took control of the vehicle. He also seems to have been drugged with a substance because he only recollected getting to a shell petrol station and then “found himself at Kayole Police Station…I went home at 10:00 am”. The robbers stole cash and the mobile equipment particularized above. He however “did not see [their] faces”.

10. According to PW3, the vehicle was never recovered. PW3 got a call from a boda-boda driver known as Samuel, who informed her that they had rescued PW1 and taken him to Kayole Police Station, a fact confirmed by the duty officer, Corporal Johnson Mueki (PW5). PW3 had also received a call from another taxi driver, Charles Ngugi (PW4), alerting him of the car-jacking incident.

11. The key witness at the trial was Sospeter Lugalia (PW2). He said that on February 14, 2017, he took his mobile phone for repairs to the appellant’s shop at Mwiki. The latter told him that “it was beyond repair and offered to sell him his phone”, a huawei phone (exhibit 1) which turned out to have been stolen from the complainant on the material night. He purchased it for Kshs 3,500. He claimed that the accused then entered PW2’s phone details in a black exercise book (exhibit 4) in order to get in touch if he located the “ear-phone or charger” for the phone.

12. There was then the evidence of Chief Inspector Cheruiyot (PW6), a document examiner at DCI headquarters. The material part of his evidence was that he ascertained that the handwriting in the stiff-cover exercise book (exhibit 4) recovered from the appellant’s shop and the specimen handwriting were authored by the same person.

13. On February 24, 2017, PW2 was confronted by the police who had tracked the mobile phone. He led them to the accused’s shop who was then arrested. PW2 testified that he did not know the accused prior to the sale of the mobile phone.

14. But according to the appellant (DW1), he was only in the business of phone repairs. He was emphatic that never sold phones. He had known PW2 as his customer for over two years. His version was that PW2 brought the huawei phone (exhibit 1) to the shop as “he had forgotten the password and wanted [appellant] to crack it”. Since, the appellant’s computer was not working, he wrote down PW2’s contacts (phone number) in the black exercise book (exhibit 4).

15. The appellant’s father (DW2) said his son had been repairing phones for 20 years; and, that he had leased the shop for him at Mwiki. That version was regurgitated by Charles Irungu (DW3), the appellant’s neighbour at Mwiki.

16. I take the following view of the matter. Subject to section 111 of the Evidence Act, the legal burden of proof lay with the prosecution. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] EA 332.

17. The appellant was charged for robbery with violence. Section 296 (2) of the Penal Code provides-"If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or 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." [underlining added]

18. The key elements of the offence were present in this case. There were several assailants. At least one of them had a pistol; and, they threatened to use actual violence in the course of the robbery.

19. However, no witness identified the appellant as the robber or connected him with the scene of the robbery along Kangundo Road. It also happened at night. I cannot then say that the appellant was positively identified as one of the robbers. See Wamunga v Republic[1989] KLR 424, Maitanyi v Republic [1986] KLR 198 at 201.

20. The only connection between the appellant and the robbery is the huawei mobile phone (exhibit 1). That phone was recovered from PW2 on February 14, 2017, about six days after the robbery. So did the doctrine of recent possession apply and was it conclusive of the appellant’s culpability?

21. For this doctrine to apply, the property must be in possession or be connected to the appellant; secondly, the property must be positively identified by the complainant; and, thirdly, the property must have been recently stolen. See Samson Nyandika Orwerwe v Republic, Court of Appeal, Nairobi, Criminal Appeal 16 of 2013 [2014] eKLR, Erick Gangai v Republic, Kitale, High Court Criminal Appeal 125 of 2011 (unreported).

22. I concur with the learned trial magistrate that the property was stolen barely a week earlier and was positively identified by the complainant who produced the purchase receipt (exhibits 2 a & b). When PW2 was found with the phone, he implicated the appellant.

23. But I have found PW2’s evidence unreliable on two fronts: Firstly, he denied that he had known the appellant before the incident. The appellant on the other hand was emphatic that they had known each other for over two years and had repaired PW2’s equipment on more than one occasion.

24. Secondly, it became paramount for the appellant to give a plausible explanation of his connection with the stolen item. That evidence was especially within his knowledge. The burden shifted to him under section 111 (1) of the Evidence Act which provides:"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him."

25. The appellant’s explanation is that he knew PW2 and the latter brought the huawei phone (exhibit 1) to the shop as “he had forgotten the password and wanted [appellant] to crack it”. Since, the appellant’s computer was not working, he wrote down PW2’s contact (phone number) in the stiff black exercise book (exhibit 4).

26. I have compared that version to that of PW2 that he took his mobile phone for repairs to the accused’s shop and who told him that “it was beyond repair and offered to sell him his phone”. I have already stated that PW2 was untruthful that he did not know the appellant. PW2 claimed that the appellant entered his contact details in the black book (exhibit 4) in order to get in touch if he located the “ear-phone or charger” for the phone. While that it is possible, I find it to be highly unlikely.

27. The appellant never denied that he met PW2 on February 14, 2017 and that he entered the details in exhibit 4. But in all the circumstances of this case, his explanation was plausible. Paraphrased, having explained the facts that were especially in his knowledge, there remains reasonable doubt that he is the one who stole the phone or the one who sold it to PW2. I cannot then say with confidence, that all the elements of the offence of robbery with violence were proved beyond reasonable doubt.

28. It follows as a corollary that the appellant’s conviction was unsafe. The upshot is that the appeal is allowed. The conviction and sentence is set aside. The appellant shall be released forthwith unless otherwise lawfully held.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF NOVEMBER 2022. KANYI KIMONDOJUDGEJudgment read virtually on Microsoft Teams in the presence of-The appellant.Mr. Kimutai for the appellant instructed by Wambugu & Muriuki Advocates.Mr. Mutuma for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.