[2017] KEHC 3080 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 94 OF 2016

LTIPANAE LESIOULOI...........................ACCUSED

versus

REPUBLIC.......................................PROSECUTOR

(Being an appeal from the original conviction and sentence by Hon. A. K. ITHUKU – SENIOR RESIDENT MAGISTRATE dated 14th December 2011 in Nanyuki Chief Magistrate’s Court Criminal Case No. 435 of 2011)

JUDGMENT

1. LTIPANAE LESIOULOI(the appellant) was charged before the Senior Resident Magistrate’s Court at Maralal with three counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code and with an alternative charge of handling stolen goods contrary to section 322(1)(2) of the Penal Code. On count 4 he was charged with the offence of possessing firearm contrary to section 89(1) of the Penal Code. After trial he was convicted on one count of robbery with violence and on count 4 of the offence of possessing firearm. He was sentenced on the first count to death while his sentencing on the count 4 was held in abeyance. He was aggrieved by his conviction and sentence has filed this appeal.

2. This court is the first appellant court. The duty of the first appellant court has been reinstated many times. It was discussed in the case MARGARET NJERI MBUGUA V KIRK MWEYA NYAGA (2016)eKLR where the court stated:-

“The case of Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, this court said the following with regard to the duty of a first appellate court:-

‘This being a first appeal we are reminded of our primary role as a first appellate court namely, to re-evaluate , re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not give reasons either way. See the case of Kenya Ports Authority versus Kusthon (Kenya) Limited (2009)2EA 212 wherein the Court of Appeal held, inter alia that:-

‘On a first appeal from the High Court the Court of Appeal should reconsider the evidence, evaluate itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

3. The prosecution’s case before the trial court was that on 18th June 2011 John Gichuki (PW 2) was driving lorry registration No. KAE 304 W. He was in the company of the conduct Cornelus Lemange (PW 3). On their way they found someone who had a torch and a gun. That person stopped them and ordered them out of the vehicle. That person then hit PW 2 with butt of the gun. He stole PW 2’s wallet and Nokia mobile phone. The wallet had Kshs.3,100. PW 3 was robbed of kshs.50. On being cross examined PW 2 said that he did not recognize the person who robbed them. It is because PW 2 and his conductor did not recognize the person who robbed them that the appellant was acquitted of the two robbery with violence charge.

4. On the same night Fred Longonyek PW 1, a Manager at Mebae conservancy at Londungokwe at about 6 p.m. was on board a vehicle registration No. KBK 857 C. The vehicle was driven by a person called Maina. After passing Londungokwe at about 8. 30 p.m. they saw a man emerge from the side of the road. The person had a bright torch attached to a gun. The person stood in the middle of the road pointing the gun at the driver. He ordered the occupants to get out of the vehicle. PW 1 once out hesitated from lying down as ordered by the person. That person hit PW 1 with the butt of the gun. The person stole from PW 1 wallet which had Kshs.18,700, an ATM card of Equity Bank, National Identification card and staff identification car. P W 1 stated in his evidence in chief:-

“I was able to see the face of the assailant.”

After robbing PW 1 and his companions, the robber ordered them to return to the vehicle and continue their journey.

5. The following morning PW 1 together with rangers from the conservancy, also with Administration Police Officers (APS) and villagers followed the footsteps of the robber which led them to Londungokwe shopping center. Those footsteps led them to a certain building. At that building the appellant was serving tea at his hotel to a customer. The appellant on being requested opened his house where upon they found a black wallet of PW 1 Kshs.18,700, electoral card of PW 1, National Identity card of PW 1 a staff identity card of PW 1 and PW 1’s ATM card. On a further search of the house they recovered a riffle hidden under clothes. PW 1 stated:-

“I have known accused (appellant) a long time. On the night of the robbery he had a yellow jacket and woolen cap …… I have known the accused for a long time. He runs a shop and hotel business in the shopping center.”

On being cross examined PW 1 stated of the appellant:-

“I was able to recognize you at the scene. I saw you had one ear lobe pierced.”

6. A clinical officer produced P3 forms which revealed that PW 1, PW 2 and PW 3 were injured during the robbery.

7. A police officer, a firearm examiner produced a ballistic report which revealed that the gun recovered at the appellant’s home was in fair mechanical condition with complete components. That it was capable of being fired and was indeed test fired. The officer found the riffle to be a firearm as defined under the firearm Act.

8. When the appellant was put to his defence he stated under oath that he was livestock dealer. That on 18th June 2011 his goats strayed into the conservancy took his goats to him but demanded 3 goats as a fine. Appellant said he declined to give them the three goats. That when he went into a hotel to take tea APs and others began to beat him and alleged he was a robber. It was then he was he was taken to Wamba Police Station and charged with the offence of robbery.

9. In his first ground of appeal appellant faulted his identification by PW 1 at the scene of robbery. He submitted that the conditions of his identification were not favourable. In the case ODHIAMBO vs REPUBLIC (2002) 1 KLR 214 the court of appeal held:-

“1. Courts should receive evidence on identification with the great circumspection particularly where circumstances are difficult and do not favour accurate identification.

2. Where evidence of identification rests on a single witness and circumstances of identification are known to be difficult, what is needed is other evidence, either direct or circumstantial, pointing to the guilt of the accused person from which, the court may reasonably conclude that identification is accurate and free from the possibility of error.”

10. It is true that the robbery having taken place at about 8. 30 p.m. the circumstances of identifying the appellant must have been difficult. The prosecution failed to lead evidence of whether there was light at the scene. And if there was light how bright it was and how far PW 1 was when he saw the appellant. But as much as the prosecution did not lead evidence in that regard PW 1 was very clear in his recounting of how the appellant was dressed on that night. PW 1 saw appellant had a yellow jacket and wollen cap. PW 1 even noted appellant had one ear lobe which was pierced. The learned trial magistrate in his considered judgment believed the evidence of PW 1. This is how he summed up his view of PW 1:

“He (PW 1) was very consistent and appeared credible. I believed that he was truly a victim of robbery on the night of 18/6/11. ”

11. Over and above the identification evidence of the appellant, there was the evidence of recovery of stolen personal items of PW 1. The recovered items in appellant’s home were largely identifiable and personal to PW 1. They were PW 1’s National Identity card, his voter’s card, and Equity Bank ATM – card. Further the exact amount of money stolen from PW 1, Kshs.18,700, was recovered intact in the appellants home. The learned trial magistrate was right to have applied the doctrine of recent possession in respect to that recovery.

The court of appeal in the case DAVID MUGO KIMUNGE V REPUBLIC [2015] eKLR referred to the doctrine of recent possession as was discussed in the case ISAAC NG’ANG’A KAHIGA alias PETER NG’ANG’A KAHIGA V REPUBLIC Cr. Appeal No. 272 of 2005 (UR) viz:-

“Is trite 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:

i) That the property was found with the suspect;

ii) That the property is positively the property of the complainant;

iii) That the property was stolen from the complainant;

iv) 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.”

12. PW 1 was able to positively identify his wallet, his national identity card, his ATM card and his voter’s card. Those items were found in the appellant’s home. The items were recently stolen from PW 1. All steps required for the application of the doctrine of recent possession were present in the items recovered from the appellant’s home. It is because of that finding that I support the finding of the trial magistrate in the conviction on the robbery with violence charge.

13. The appellant erred to fault the prosecution for not calling witnesses such as the ex councilor, who was his landlord, and for not summoning members of the public who were present when he was arrested. Section 143 of the Evidence Act Cap 80 provides that no particular number of witnesses that need be called to prove a fact. The prosecution in this case called the ranger and the AP officers who mounted the search of the robber and on following the footstep they were led to the appellant’s home where the items that had been stolen from PW 1 were recovered.

14. The appellant’s faulting of prosecution’s evidence that the riffle which was examined by ballistic was not the one recovered from his house is rejected. Appellant submitted that since some witnesses, and in particular PW 4 and PW 6, did not see a serial number on the riffle the serial number noted by PW 8 and PW 10 the ballistic examiner prove that it was not the riffle recovered from him that was examined. Those are what one can term as minor inconsistencies not going to the root of the matter. The court of appeal has discussed such inconsistencies not going to the root of the matter. The court of appeal has discussed such inconsistencies in the case PHILIP NZAKA WATU V REPUBLIC [2016] eKLR where the court stated:-

“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phomena exactly the same way. Indeed as has been recognized in many decisions of this court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.

In DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V THE REPUBLIC, CR. APP. NO. 92 of 2007 the Court of Appeal Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:-

“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

15. In my view the prosecution proved that the riffle recovered at appellants home was the one which was tested by the ballistic expert who confirmed it was a firearm within the meaning of Firearm Act.

16. Bearing in mind the very cogent and clear evidence of the prosecution I find that the defence offered by the appellant was not only an afterthought but was untrue. The appellant did put the issue of his defence to the prosecution witnesses.

17. Accordingly I find that the appellants appeal both against conviction and sentence fails. The appellant’s appeal is hereby dismissed. The trial court’s conviction is hereby upheld and the sentence, which was lawful, is hereby confirmed.

DATEDandDELIVEREDatNANYUKIthis4THday ofOCTOBER 2017.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant: Ltipanae Lesiouloi ………………….………...….

For the State: …....................................................

Language: ………………………………………………………..

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE