[2022] KEHC 10893 (KLR)

Lelengwe (4th Accused in Trial Court) & another v Republic (Criminal Appeal 91 of 2018 & E030 of 2021 (Consolidated)) [2022] KEHC 10893 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10893 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 91 of 2018 & E030 of 2021 (Consolidated)

HPG Waweru, J

May 19, 2022

Between

Henry Lelengwe (4th Accused in Trial Court)

1st Appellant

Aladna Lepir (3rd Accused)

2nd Appellant

and

Republic

Respondent

(Appeal from original Conviction & Sentence in Maralal Principal Magistrate’s Criminal Case No 1322 of 2016 – Hon R Koech, PM))

Judgment

1. The two Appellants herein, Henry Lelengwe (4th accused before the trial court) and Aldona Lepir (3rd accused) were convicted after trial of robbery with violence contrary to section 296(2) of the Penal Code. Two (2) of their co-accused – Rasano Lesuuda (1st accused) and Lelesherp Lmalendi (2nd accused) - were similarly convicted. Their other two co-accused,, Maii Lelengwe (5th accused) and Lengeshere Lolwerikoi (6th accused) were acquitted.

2. On July 10, 2018 the Appellants and the other two convicted accused persons were all sentenced to serve life imprisonment. The Appellants appealed against the conviction and sentence. At the direction of the court the registry checked if the other two convicted persons similarly appealed, either here or at the High Court, Nakuru. No appeals filed by those other two came to the attention of this court.

3. The two Appellants have challenged the convictions mainly upon the following grounds:-i.That the doctrine of possession of recently stolen goods upon which the Appellants were convicted was not established by evidence beyond reasonable doubt.ii.That the prosecution failed to call crucial witnesses without any explanation for the failure.iii.That the trial court ignored prosecution evidence (by PW11, the investigation officer) which exonerated the Appellants.iv.That the evidence tendered by the prosecution was not sufficient to properly found the convictions of each Appellant.

4. I have read and considered the able written submissions filed on behalf of the Appellants by their respective learned counsels and those of the learned counsel for the Respondent. He does not support the convictions of the Appellants for the following reasons -i.That there was not sufficient evidence linking the two Appellants to the charge of robbery with violence, which charge was not proved beyond reasonable doubt.ii.That members of the public who were said to have led the police to the Appellants, and were thus crucial witnesses, were not called to testify, and no reasons was given for this state of affairs.iii.That the testimony of an important prosecution witness (PW 11 who was the investigating officer) to the effect that the 1st Appellant purchased or was to purchase the deceased’s motorcycle from the 1st and 2nd accused for valuable consideration (KShs 60,000/00) exonerated the 1st Appellant from participation in commission of the crime.iv.That the conviction of the 1st Appellant was wrongly influenced by the fact that he at one time during the trial jumped bail.

5. This being a first appeal, I have read through the record of the trial court in order to evaluate the evidence tendered and arrive at my own conclusions regarding the same. I have borne in mind however that I neither saw nor heard the witnesses testify, and I have given due allowance for that fact.

6. The 1st and 2nd accused before the trial court (Rasano Lesuuda and Leleshep LmalendI respectively) were clearly identified as the persons who hired the deceased’s boda-boda to take them to their destination, only for his lifeless body to be discovered some days later in the bush and his motorcycle stolen. They appear not to have appealed their conviction or sentence.

7. The 1st Appellant was convicted upon the finding by the trial court that he was found in possession of the motor cycle that had been recently robbed off of the Deceased without any plausible explanation as to how he had come by it. Similarly the 2nd Appellant was convicted upon the same doctrine of possession of recently stolen goods in respect to the number plates(s) of the motor cycle, found hidden in a tree trunk.

8. Part of the testimony of the investigating officer (PW11) was that the 1st and 2nd accused told him that they had sold to the 1st Appellant the motor cycle for the agreed consideration of KShs 60,000/00. The 1st Appellant confirmed that story to the investigators and identified the 1st and 2nd in the cells the following day. PW11 stated that this story was corroborated by intelligence they already had. This piece of evidence, which clearly exonerated the 1st Appellant, appears to have been ignored by the trial court which found that the 1st Appellant had not given a plausible explanation of his possession of the motor cycle.

9. As for the 2nd Appellant, PW11 narrated to court that the 1st and 2nd accused had requested the 2nd Appellant to hide for them the number plates, and that he had done so in a tree trunk after he had been briefed by them as to what had happened (the robbery and murder of the deceased). Clearly the 2nd Appellant was not part of the robbery and the murder; his crime was in the favour he did to the 1st and 2nd accused, of hiding the number plates of the motor cycle for them.

10. PW11 and his fellow police officer PW10 believed what the 1st and 2nd accused told them about their transactions with the 1st and 2nd Appellants regarding the stolen motor cycle and its number plates, the same having been corroborated by intelligence they already had. So, the 1st Appellant had negotiated with the 1st and 2nd accused (who were the robbers and killers of the deceased) for him to purchase the motor cycle for valuable consideration, and that is how the motor cycle came into his possession. The 2nd Appellant on the other hand merely hid the number plates of the motor cycle for the 1st and 2nd accused as a favour to them as a friend. He, just like the 1st Appellant, played no part at all in the robbery and killing of the Deceased. The police officers investigating the matter (PW11 and PW10) believed this state of affairs. There was no reason at all for the trial court not to believe as the investigators did.

11. Learned counsel for the Respondent properly conceded the Appellants’ appeal. Their convictions are not safe at all and cannot be sustained. I will therefore allow these two appeals in their entirety, quash the convictions and set aside the sentences imposed. They shall be set at liberty forthwith unless lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 18THDAY OF MAY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 19THDAY OF MAY 2022