[2023] KEHC 26383 (KLR)

Lomala v Republic (Court Martial Appeal E001 of 2020) [2023] KEHC 26383 (KLR) (Crim) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26383 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Court Martial Appeal E001 of 2020

DR Kavedza, J

December 8, 2023

Between

No. 93762 SPTE Gregory Ekaru Lomala

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by the Court at Embakasi Garrison in Court Martial no. 1 of 2019 Republic vs SPTE Gregory Ekaru Lomala)

Judgment

1. The appellant was charged with the offence of stealing contrary to section 91(1) of the Kenya Defence Forces Act, 2012. In the alternative, he was charged with the offence of commission of a civil offence namely possession of ammunition contrary to sections 133 (1) (b) of the Kenya Defence Forces Act, 2012 as read with sections 4 (1), 2(1)(a) and 3 (a) of the Firearms Act. He was also charged with the offence of being absent without official leave contrary to section 75 (1)(a) as read with section 75(2) of the Kenya Defence Forces Act, 2012. He was convicted on the main charges and sentenced to serve 10 years imprisonment for count I and 1 year imprisonment for count II.

2. Being dissatisfied, he filed an appeal challenging his appeal and conviction. In his petition of appeal, he raised 7 grounds which have been summarised as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He contended that he was not afforded a fair hearing for being denied an opportunity to submit on a case to answer. He urged the court to quash his conviction and set aside the sentence.

3. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

4. The prosecution called sixteen (16) witnesses in support of their case. Major Owori (PW1), the officer commanding in charge of training, provided a timeline of events. He had granted officers a pass to return on September 9, 2018, but their departure was postponed due to the need for additional weapons and tents. On September 11, 2018, they were tasked with collecting weapons from Gilgil and tents from Kahawa Barracks. On September 12, 2018, Major Owori received a call informing him that the appellant had been arrested in Nanyuki Town with ammunition. The appellant was also noted as being absent without official leave (AWOL).

5. Captain Odhiambo (PW2), an instructor, confirmed that they had been granted a 9-day pass to return on September 9, 2018. On September 12, 2018, he learned that the appellant had been arrested in Nanyuki with ammunition.

6. WOII Peter Kavita (PW3) described the preparations for their departure, loading supplies onto an Isuzu lorry. On September 11, 2018, he organized two teams for separate missions to collect supplies from Gilgil and Kahawa Barracks. During an assembly, PW3 instructed Private Were (PW5) to retrieve a wooden box of ammunition from the Isuzu truck, which PW3 distributed to the escort teams. The following day, PW3 received a call regarding missing ammunition. The search continued, and he was later informed of the appellant's arrest in Nanyuki.

7. PW4, an instructor at the Special Army Team, received a call on the night of September 11, 2018, from Private Were (PW5) reporting missing ammunition. He joined the search but was unable to locate the ammunition. Later, he learned of the appellant's arrest with a similar metal box containing ammunition.

8. PW5, Private Were, described how he was instructed to retrieve a wooden box of ammunition from the Isuzu truck on September 11, 2018, with PW3 overseeing the process. He returned the ammunition to the truck but later received a call about missing ammunition and participated in the search. He learned of the appellant's arrest in Nanyuki with ammunition.

9. Spte Martin Mbao (PW6) witnessed PW3 instructing PW5 to retrieve ammunition from the Isuzu truck and distribute it to the escort soldiers on September 11, 2018. He also saw the appellant carrying a black bag toward the Isuzu truck on the evening of the same day. Later, students were called to search for missing ammunition, but it was not found. PW6 learned of the appellant's arrest through social media.

10. On September 11, 2018, PW7 and PW8, who were on duty, testified that after supper, they went to rest in the Isuzu lorry and noticed that the wooden box, previously used to supply ammunition for escort duties, appeared to have been tampered with. Upon closer inspection, they found that one of the two metal boxes placed inside the wooden box, the unopened one, was missing. They conducted a search and contacted PW5, who had returned the ammunition to the lorry, to verify if something was amiss with the box. PW5 confirmed that the wooden box should have contained two sealed steel metallic boxes, one of which had been opened to issue ammunition to sentries, and the other was sealed. PW7 and PW8, along with PW5, searched for the missing ammunition and then contacted PW4 to report the loss.

11. PW 9 told the court that the appellant had initially promised to call him upon arriving in Isiolo but failed to do so. Instead, PW9 learnt through social media that the appellant had been intercepted and arrested, with ammunition found in his possession, while he was traveling from Nairobi to Isiolo.

12. PW10, PC Isaac Nyile, reported how he and his colleagues received a tip-off about two suspicious individuals in a taxi at the Total Petrol Station in Nanyuki on September 12, 2018. Along with PW11, they proceeded to the stage and encountered a private saloon car with the registration number KBR 417A. They identified themselves to the driver and two passengers, at which point the driver was asked to open the car's trunk. The appellant then approached PW10 and whispered that there was no need to open the bag as he was a Kenya Army officer assigned to transport ammunition to Isiolo. However, lacking official documentation to support his claim, PW10 and PW11 insisted on inspecting the bag, identified. Inside the bag, they found a heavy steel container which raised suspicions. They arrested the appellant and took him to Nanyuki Police Station.

13. PW12, Inspector Victor Kiptoo, described receiving a report about the arrest of three individuals suspected of illegal ammunition possession. He identified the items found on the appellant during the arrest, including a steel metallic box with 750 rounds of ammunition. The ballistic expert, PW13, confirmed that the seized ammunition was indeed ammunition, providing test results.

14. Spte Shadrack Mutiso (PW14) testified that he encountered the appellant on his way to Isiolo on September 11, 2018. They both traveled to Nanyuki and later shared a taxi. Civil police found the ammunition in the appellant's bag, and both were arrested.

15. WO1 Jediel Gikunda (PW15) detailed the handover notes between civilian police and military police regarding the appellant's custody. He identified the appellant and the items found in his possession.

16. Maj Mutiso (PW16), the Investigating Officer, outlined his investigation and witness statements. The appellant, during his defense, denied all allegations, including possession of the ammunition. He admitted being present in the Probox but claimed he was not the sole occupant. He argued that no fingerprints were taken, and he first saw the bag in court. He also denied being AWOL.

Analysis and determination. 17. In his written submissions, the appellant contested the entire body of evidence presented by the prosecution, which led to his conviction. He contended that none of the prosecution's witnesses had observed him taking the ammunition from the purported truck. Moreover, these witnesses had not witnessed the appellant in possession of the ammunition. He further asserted that the prosecution had not established ownership of the allegedly stolen ammunition. Additionally, he insisted that he was not the owner of the vehicle from which the ammunition was recovered. According to the appellant, the prosecution had failed to provide conclusive evidence that unequivocally linked him to the alleged offense beyond a reasonable doubt.

18. In count, I, the appellant was charged with the offence of stealing contrary to Section 91 (1) of the Kenya Defence Forces Act which defines stealing as;1. A person subject to this act who steals commits an offence and on conviction-(a)if by reason of the person's rank, appointment, or employment or as a result of any lawful command the person, at the time of the commission of the offence, was entrusted with the custody, control, or distribution of the thing stolen, is liable to imprisonment for a term not exceeding fourteen years or to lesser punishment: or(b)is liable to imprisonment for a term not exceeding seven years or to lesser punishment

19. The appellant is said to have stolen ammunition which he acquired whilst working in the army special team, which he acquired by his rank as a specialist officer. Section 91 (1) describes stealing in such a manner that is necessitated by someone who is of sufficient rank to carry out the stealing. The provision is clear that the person charged must have been entrusted with, or was in custody of, or distribution of the thing stolen. The case for the prosecution was that the ammunition alleged to be stolen was taken by the appellant when he was tasked with transporting the ammunition from Gilgil and Kahawa Barracks. The ammunition was to be collected and distributed to the escort teams. It was at this time that the officer in charge noticed that the ammunition was missing.

20. Furthermore, the prosecution argued that the appellant was aware that the ammunition did not belong to him but was the property of the Kenya Defence Forces. Additionally, the appellant had the intention to use it for purposes not sanctioned by the law, which constituted an act of theft.

21. It is the obligation of this court to determine whether these elements of the offence of stealing were proved by the evidence adduced. The same will be demonstrated hereafter in this judgment. All the same, it is clear that the charges of stealing conformed to Section 91(1) of the Act.

22. Of importance is to note is the circumstances under which the ammunition was lost. The appellant was part of a team that was assigned to escort supplies from Nanyuki to Isiolo on September 11, 2018. The appellant took advantage of an assembly called by his commander to access a wooden box containing two metal boxes of ammunition in an Isuzu truck parked at the transport yard. The appellant opened one of the metal boxes and took some ammunition, which he hid in a black bag. He then sealed the box and returned it to the wooden box, along with the other unopened metal box. This was confirmed by PW 6 who witnessed the appellant approaching the Isuzu lorry while carrying a black bag.

23. The appellant left the camp with the black bag and met another person at the matatu stage. He planned to sell the ammunition to a boda-boda operator (PW 9) in Isiolo, who had declined to partner with him in the illegal business. The appellant was arrested by the police at a petrol station in Nanyuki after a tip-off from a private informant. The police found the ammunition in the appellant's bag and booked him at the Nanyuki Police Station.

24. The appellant claimed to be a Kenya Army Officer and said he was tasked to transport the ammunition to Isiolo, but he had no authorization or documents to prove his claim.

25. The Kenya Defence Act expressly provides that the loss must be as a result of a lawful command to the person who steals. The appellant was bound by the orders of the Commanding Officer to execute whatever commands issued to him in respect of his position.

26. PW 12 told the court that the appellant was arrested by civilian police in Nanyuki town on September 12, 2018. This was corroborated by PW 10, who arrested the appellant. He gave evidence that the appellant was found in possession of 750 rounds of ammunition. These rounds of ammunition were found to match the batch found missing from the Isuzu truck. The ballistic examination was conducted by PW 13, the ballistics expert.

27. The next question to consider is whether there was sufficient evidence to link the appellant to the offence. The prosecution did not call any eye witness to testify that they saw the appellant stealing the ammunition from the truck. The evidence of led evidence through PW 10 and PW 12 was that the appellant was found in possession of the ammunition. The appellant denied ownership of the black bag that contained the ammunition. The evidence PW 14, who travelled with the appellant from Nairobi to Nanyuki corroborated the evidence of PW 10 that the appellant indeed was in possession carrying the black bag from Nairobi to Nanyuki that had the rounds of ammunition. After a search was conducted, he was found in possession of the ammunition.

28. The principles for application of the doctrine of recent possession are well known, and were set out in Arum v R (2006) 1 KLR 233 as follows:“1. The property was found on the suspect;

2. The property was positively identified by the complainant;

3. The property was stolen from the complainant; and

4. The property was recently stolen from the complainant.”

29. The principle is that if recently stolen goods are found in possession of an accused who cannot explain his possession, there is a presumption that the person is the thief or handler of the stolen goods. In Chaama Hassan Hasa v Republic (1976) KLR 6, 10, the Court (Trevelyan & Hancox, JJ.) put the matter as follows:“[W]hat is generally referred to as the doctrine of recent possession, often expressed in this way: that where an accused person has been found in possession of property very recently stolen, in the absence of an explanation by him to account for his possession, a presumption arises that he was either the thief or a handler by way of receiving (through not by way of retaining), but this doctrine does not apply to all the cases. What has been laid down is that, where it is proved that property has been stolen and very soon after the stealing the accused has been found in possession of it, it is open to the tribunal of fact to find him guilty of stealing, or of handling it by way of receiving: see R v Seymour (1954) 38 Cr App Rep. 68;’’

30. This court finds that the elements required to apply the doctrine of recent possession have been met in these circumstances, given the fact that it was positively proven that the 750 rounds of ammunition were recovered in the appellant’s bag. In addition, they were found in possession of the appellant less than 48 hours after they were reported stolen. As was held in the case of Kelvin Nyongesa & 2 others v Republic [2018] eKLR:“Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. This burden is evidential only and does not relieve the prosecution from proving its case to the required standard.’’

31. The prosecution, having proved that the ammunition was stolen, now lay with the appellant to give a probable explanation as to how he came to be in possession of the stolen goods. As held in the Court of Appeal case of Paul Mwita Robi v Republic KSM Criminal Appeal No 200 of 2008;“Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is (sic) especially within the knowledge of the accused and pursuant to the provisions of Section 111 of the Evidence Act Chapter 80, the accused has to discharge that burden.”

32. The appellant maintained his innocence and denied any connection with the ammunition. He therefore failed to give any reasonable explanation for how he came to be in possession of the stolen ammunition.

33. After carefully reviewing the evidence on record, the court concludes that the appellant indeed stole ammunition. His conviction on this count was therefore proved beyond reasonable doubt.

34. The appellant was also convicted for the offence of being absent without official leave contrary to section 75 (1)(a) as read with section 75(2) of the Kenya Defence Forces Act, 2012. In his petition of appeal and the written submissions on record, the appellant did not challenge the evidence against him on this particular count. His conviction is therefore upheld.

35. The appellant also argued that crucial witnesses were never called to testify. He challenged the failure of the prosecution to call the Probox driver, who in his mind was a crucial witness. He maintained that the driver would shed light on who placed the ammunition in the boot.

36. This court is alive to the fact there is no legal requirement for the number of witnesses to prove a fact. Section 143 of the Evidence Act (Cap 80) of Kenya provides:143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact

37. In the case of Bukenya &othersv Uganda [1972] EA 549 court addressed itself thus:-“(i)The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.(ii)That Court has right and the duty to call witnesses whose evidence appears essential to the just decision of the case.(iii)Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”

38. The evidence in the instant case was adequate to prove the ingredients of the offences the appellant was charged with at the trial court. In addition, the appellant had an opportunity to call the driver as a defence witness which he did not. In the end, this ground therefore fails.

39. On sentence, the appellant was sentenced to serve 10 years imprisonment for count I and 1 year imprisonment for count II. Section 91 (1) of the Kenya Defence Forces Act provides that an offender convicted for the offence of stealing is liable to a term of imprisonment for a term not exceeding fourteen years or to a lesser punishment.

40. From the record, the sentence imposed by the trial court is lawful. However, this court can interfere with judicial discretion when it is found that it was not exercised judiciously.

41. The upshot of the above analysis is that the appeal partially succeeds. The sentence of 10 years imprisonment for counts I is substituted with imprisonment for a term of five (5) years. The sentence in count II is affirmed; that is to say, the appellant is sentenced to serve a term of one (1) year imprisonment. The sentences shall run concurrently.It is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER, 2023. ..................D. KAVEDZAJUDGE