[2022] KEHC 14228 (KLR)

Koskei v Republic (Criminal Appeal 15 of 2020) [2022] KEHC 14228 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14228 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal 15 of 2020

AN Ongeri, J

October 14, 2022

Between

Victor Kipkirui Koskei

Appellant

and

Republic

Respondent

(Being an Appeal from the original conviction and sentence by Hon. B.R. Kipyegon (SRM) in Kericho CM CR case No. 2305 of 2019 delivered on 13/2/2020)

Judgment

1. The appellant was charged with burglary and stealing contrary to section 304(2) as read with section 279(b) of the Penal Code.

2. The particulars of the charge were that on the night of March 7, 2019 at Cheptenge village in Belgut sub-county broke into John Kemei’s dwelling house and he stole from there a 24” TV set and Techno Y2 phone all worth Kshs 60,000.

3. The prosecution evidence was as follows: - “that the complainant, Mrs Joyce Kemei, on the night of May 7, 2019, went to sleep together with her husband and woke up the following morning to find that her house was broken into and her Mkopa TV set worth Kshs24,000 together with her Tecno phone Y2 missing from the house, she then made reports at Sosiot police station. On the May 30, 2019, the complainant then received a call from a stranger named Duncan who asked her if she had lost a Tecno Y2 phone and they agreed to meet at Kapsoit, and upon meeting, Duncan informed the complainant that there had been an attempt by one Victor Kipkurui to sell the phone to him at a suspicious cost of Kshs 1, 500 and that he had scrolled through the messages contained in the phone and that is how he was able to get her phone number and contact her. The complainant and Duncan together with the police from Kapsoit police station then headed to village bar in Kapsoit, where the said Victor Kipkurui worked, and upon interrogation of the suspect, they were able to recover the Mkopa TV set together with the Tecno Y2 phone.”

4. The appellant said as follows during his defence: -“That he was at work in Kapsoit when two AP officers came and arrested him, took away his phone and led him to the police post. He stated that the police did not inform him of any wrong doings, but only informed him that his phone had been found with a stolen memory card in it. He stated that he was in court for no offence committed”

5. The trial court found the appellant guilty and sentenced him to 10 years imprisonment.

6. The appellant is aggrieved by the conviction and sentence and has appealed to this court on the following grounds.i.That the learned trial magistrate erred in both law and facts to base a conviction and sentence against the appellant without considering the alibi defence of the appellant;ii.That the learned trial magistrate erred in law and facts in failing to appreciate that the prosecution had failed to establish their case to the required standard i.e beyond any reasonable doubt by not calling the potential witnesses which were acquitted under section 87 (a) of the Criminal Procedure Code;iii.That the learned trial magistrate erred in both law and facts to base a conviction and sentence against the appellant without providing the necessary documents to prove ownership of the goods suspected to have been stolen;iv.That the learned trial magistrate erred in both law and fact to base a conviction and sentence against the appellant on the evidence full of contradictions and discrepancies;v.That the learned trial magistrate erred in both law and fact to base a conviction and sentence against the appellant by not allowing the appellant’s request to further recall the witness for further cross examination.

7. The parties filed their submissions which are as follows:The appellant submitted that the trial magistrate failed to consider the glaring contradictions and inconsistencies in the prosecution evidence and also failed to consider the evidence as a whole, especially by the defence.

8. The appellant also submitted that no evidence was produced to prove the ownership of the stolen goods, or the ownership of the house where the stolen goods were recovered, and further that the prosecution relied on circumstantial evidence to establish both the offence of burglary and that of stealing, as no eye witness account was given by any of the persons who testified in the matter.

9. The appellant also submitted that the prosecution did not disclose in advance the evidence that they intended to rely on as provided for under article 50 (2) (j) of the Constitution of Kenya, 2010; and he was not informed of the right to legal representation.

10. The prosecution on the other hand submitted that the appellant is raising the defence of alibi for the first time, as he did not raise it during his arrest, when cross examining the prosecution witnesses and did not raise it during his defence hearing.

11. It was also submitted by the prosecution that the main elements of the charge against the appellant were proved beyond reasonable doubt, and further, that the failure to avail receipts as proof of ownership of the goods is not fatal, as it is trite that receipts are not always retained or available for household goods such as TV sets; and that the TV set was an M-kopa TV that the complainant was still paying off, which is a reasonable explanation as to why she did not have a receipt.

12. It was further submitted by the prosecution that any contradictions or discrepancies in the prosecution case were minor and not material and the same cannot render the conviction unsafe; and further that the appellant made an application to recall witnesses without demonstrating why it was essential to recall the said witnesses, and the trial court exercising its discretion disallowed the application.

13. This being a first appeal, the duty of the 1st appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that the trial court had the advantage of seeing the witnesses.

14. The issues for determination in this appeal are as follows:i.Whether the prosecution proved the guilt of the appellant to required standards.ii.Whether the trial court failed to consider the appellant’s alibi defence.

15. I find that the prosecution evidence was watertight. There is evidence that an informer called Duncan informed the complainant that there had been an attempt by one Victor Kipkurui (the appellant) to sell a phone to him at a suspicious cost of Kshs 1, 500 and that he had scrolled through the messages contained in the phone and that is how he was able to get her phone number and contact her.

16. The complainant and Duncan together with the police from Kapsoit police station then headed to village bar in Kapsoit, where the said Victor Kipkurui worked, and upon interrogation of the suspect, they were able to recover the Mkopa TV set together with the Tecno Y2 phone belonging to the complainant.

17. There is evidence that the complainant, Mrs Joyce Kemei, on the night of May 7, 2019, went to sleep together with her husband and woke up the following morning to find that her house was broken into and her Mkopa TV set worth Kshs 24,000 together with her Tecno phone Y2 missing from the house, she then made reports at Sosiot police station the May 30, 2019,the same were recovered from the appellant.

18. I also find that the prosecution’s evidence displaced the appellant’s alibi. The appellant denied any wrong doing. The burden of prove having shifted to him, he did not say how he came in possession of the stolen goods.

19. There is evidence that he was found in possession of the stolen goods in circumstances that left no doubt that he was involved in the burglary and stealing of the said goods. The doctrine of recent possession is applicable in this case.

20. The Court of Appeal inVictor Mwendwa Mulinge v Republic (2014), eKLR while addressing the alibi defence stated as follows: - “ It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibilies on the prosecution; see Karanja v Republic [1983] KLR 501…..In Karanja v Republic (supra), this court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”

21. The high court in Republic v John Kimita Mwaniki (2011), stated as follows: - “The law prior to the repeal of section 235 of the Criminal Procedure Code required that an accused who wished to rely upon the defence of an alibi, had to give the particulars of the place where he was, and the particulars of the persons with whom he was. The law today is that it is up to the prosecution to displace any defence of an alibi and show that the accused was present at the place, and at the time the offence was committed by the accused or his accomplices.”

22. The appeal herein lacks in merit and the same is dismissed.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 14TH DAY OF OCTOBER, 2022A. N. ONGERIJUDGE