[2022] KEHC 12720 (KLR)

Maina & another v Republic (Criminal Appeal 7 & 8 of 2020 (Consolidated)) [2022] KEHC 12720 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12720 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal 7 & 8 of 2020 (Consolidated)

GWN Macharia, J

July 14, 2022

Between

Samuel Maina

1st Appellant

Joseph Mungai

2nd Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in the Senior Principal Magistrate’s Court at Engineer Cr. Case No. 473 “4B” of 2017 delivered by Hon. H. O. Barasa (SPM) on 8th April 2020)

Judgment

1. The Appellants, Samuel Maina and Joseph Mungai, were charged alongside another with the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. The particulars were that on the night of May 30 and 31, 2016 at Jura village, in Kipipiri Sub-County, within Nyandarua County, jointly with others not before court while armed with unknown crude weapons, robbed William Karanja Mungai (deceased) of a speaker, music mixer, inverter, keyboard, generator, DVD player, extension cables, two jembes, two shirts, three caps, Go-tv decoder, phone charger, two umbrellas, three microphones, one leso, four pairs of golden lion batteries, four bicycle tubes, one pair of gumboots, one pair of rubber shoes, two small radios, one small boys' suit, one girls' dress, one kitchen knife, two bags, two shoe creams, one measuring tape, three packets of wheat flour, one packet of maize flour, three kilograms of sugar and two jackets, all valued at Kshs 81,250/= and at the time of the said robbery fatally wounded the said William Karanja Mungai. (deceased)

2. In the alternative, the Appellants were charged with the offence of handling stolen goods contrary to Section 322(2) of the Penal Code. The particulars were that on May 31, 2016 at Leleshwa area in Kipipiri Sub-County, within Nyandarua County, the Appellants, otherwise than in the course of stealing, were jointly found in possession of a speaker, a mixer, an inverter, keyboard, extension cables, a DVD Player, two jembes, two shirts, three caps, GO-TV Decoder, two torches, phone charger, two umbrellas, three microphones, two lessos, four pairs of golden batteries, four bicycle tubes, a pair of gumboots, a pair of rubber shoes, two small radios, one boys' suit, one girls' dress, one kitchen knife, two bags, two shoe creams, one measuring tape, three packets of wheat flour, one packet of maize flour, three kilograms of sugar and two jackets, knowing or believing them to be stolen goods or unlawfully obtained.

3. They pleaded not guilty to the offences. Upon full trial, they were found guilty of the principal charge of robbery with violence and were sentenced to serve thirty (30) years imprisonment each. Being aggrieved by both their conviction and sentences, they preferred the instant appeals. The appeals were heard together and have now been consolidated for purposes of this judgment.

Grounds of Appeal 4. The 1st Appellant and the 2nd Appellant’s appeals are based on Amended Grounds of Appeal filed alongside their written submissions on August 2, 2021 and January 17, 2022 respectively. They each raised five grounds which can be summarized as follows:1. That the learned trial magistrate erred in law and facts by failing to find that the entire proceedings had a myriad of contradictions, inconsistencies and discrepancies.2. That the learned trial magistrate erred in law and fact by failing to appreciate that the offence was not proved beyond reasonable doubt.3. That the learned trial magistrate erred in law and fact in failing to find that the Appellants’ right to fair trial was infringed contrary to Article 50 of the 2010 Constitution and other provisions of law.

Summary of Evidence 5. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced by the witnesses before the trial court so as to arrive at its own independent verdict whether or not to uphold the decision of the trial court. In doing so, this court is required to take into account the fact that it neither saw nor heard the witnesses and give due regard for that. (See Okeno v Republic (1972) EA 32).

6. The Prosecution called a total of ten witnesses. Their case can be summarized as follows: On May 30, 2016, the deceased left their home at around 2. 00 pm and went to his shop at Njura Shopping Centre. By 8. 00 pm, he had not returned home which was unlike him. At around 9. 00 pm, his wife PW1, Nancy Muthoni Karanja called his mobile phone severally but the calls did not go through. The following morning at around 5. 00 am, PW1 went to the deceased's shop at Njura shopping centre and found the door unlocked but the deceased was not there either. PW1 called their son, PW6, Alex Maina Karanja and their neighbor at the shop, one Kihara, and informed them that the deceased did not return home the previous night. PW6 proceeded to join PW1 at the shop. PW6 and the said Kihara tried searching for the deceased along the road he normally used to go home but did not find him. As such, PW6 went to Turasha Administration Police Post and reported that the deceased’s shop had been broken into and he was nowhere to be seen.

7. In the meantime, at around 6. 08 am, PW2, Raphael Chege Njagi alias Mzalendo, a security consultant, boarded a Nairobi bound bus at Kamunyu area. He was going to Gilgil. After travelling for about 1 kilometer, the bus stopped to pick two passengers at Kahiga Centre. After a further 400 meters, the Bus stopped again near Mustard Seed Academy to pick more passengers. PW2 saw three men who had three bulky gunny bags and a canvass back pack. The said men informed PW9, Paul Kamau Chege, the conductor of the bus, that they wanted to travel to Nairobi and the conductor put two of the gunny bags on the bus carrier whilst one was placed inside the vehicle. One of the men entered the vehicle with an old generator. The second one entered with a fully packed bag and the third man held onto the third gunny bag which PW2 noticed had a protruding piano keyboard. As the other gunny bags were being put on the carrier, PW2 noticed that they contained what appeared to be speakers. He also noticed that the men’s trousers were wet and they were wearing gumboots which was odd since it was not raining.

8. Being a professional security person, he sensed that something was amiss and decided to alert police officers from the nearest administration police post. He called one Corporal Wambugu who was in charge of Kahiga AP Post and informed him that there were some people who had boarded the said vehicle with what appeared to be suspected stolen property. He requested him to alert traffic police officers along the said road to intercept the vehicle and gave the description of the bus and its name which was Sony. The said Corporal Wambugu relayed the message to PW8, APC Esther Wachira, an Administration Police Officer attached to Leleshwa AP Post

9. When the bus approached Kamahia Trading Centre, PW8 and two other administration police officers stopped the bus. PW2 alighted from the vehicle and informed the officers that he was the one who had called the police. Thereafter, PW2 entered the vehicle with one APC Kirui and identified the three suspicious men who happened to be the Appellants herein and a third suspect who was not before court. The 1st Appellant was holding the bag with the key board, the 2nd Appellant was holding the generator while the third suspect was holding a bulky green and black bag. The three suspects identified themselves to PW8 as Maina, Wakori and Muhinja. The vehicle was then driven to Kamahia AP Post where the gunny bags which had been put on the carrier as well as the luggage that were in possession of the Appellants were duly offloaded and the Appellants held for interrogation. Upon further inquiry, it was discovered that the recovered items had been stolen at Njura area. PW8 and her colleagues also established that the deceased herein had been reported missing.

10. PW4, Joseph Mburu Gitau, the Assistant Chief, Kiriko Sub-location, Turasha location, in Kipipiri received a call from the Chief for Leleshwa location, one John Mwangi Nyaga, at around 7. 00 m inquiring whether he was aware that three people had been arrested by Administration Police officers from Leleshwa AP Post with shop goods and music equipment. Since PW4 was not aware, he called a corporal at their local AP Post and that is when he learnt that PW6 had reported that his father's shop had been broken into and he had not returned home the previous evening. PW4 called PW6 and proceeded to the deceased’s shop where he confirmed the incident from the huge crowd that was gathered there. Thereafter, PW4 called Corporal Wambugu who informed him that the three suspects had been escorted to Kipipiri Police Station. PW4 and PW6 went to the said Police Station. At the police station, the suspects were shown to them and they both recognized the 2nd Appellant herein who was wearing a blue blood stained jacket that they identified as belonging to the deceased. PW4 knew the 2nd Appellant because he lives in his area of jurisdiction while PW6 recognized him because he was their neighbor.

11. PW5, Mbogo Kuria, a church elder at Njura Full Gospel church, was at his place of work that morning when PW4 called him and told him that some music equipment bearing the said church’s name had been recovered and he was required to go to Leleshwa Administration Police Post and identify them. The church used to store its music equipment at the deceased's shop since it was nearby. PW5 proceeded to the police post and positively identified the church’s music equipment which included one mixer, speaker, generator, key board, Sony DVD Player, three microphones and one regulator. He was familiar with the equipment since he is the one who used to set them up every Sunday. He was also able to recognize the 2nd Appellant when the suspects who were found with the said items were shown to him since he was known to him. PW5 also identified the deceased's jacket at the AP post. Wakoli, the 2nd Appellant herein, claimed that it was his but PW5 was able to recognize the jacket as the deceased wore it severally when going to church.

12. The investigating officer PW10, No. 62646 Corporal Pius Njagi, formerly attached to Kipipiri Police Station was at Kipipiri Police Station at around 10. 00 am on May 31, 2016 when the Appellants and a third suspect called Mark Nganga Muhinja were taken there by APC Wambugu and PW8. Since PW10 was the officer in charge, crime office, he interrogated the three suspects who owned up to stealing the items at a shop in Njura. They told him that they pounced on the owner of the shop while he was leaving and snatched the keys from him then beat him up to death. Muhinja further told PW10 that they had hidden the body of the deceased in a thicket and they gave him directions to the place. PW10 left the suspects in custody and proceeded to where they had directed him at around 4. 00 pm. He was accompanied by the OCS, Chief Inspector Kiptoo and three other officers and with the help of the members of the public, they recovered the deceased’s body at one Ngecha's farm. The same had been covered with leaves and save for the inner pant, all the other clothes had been removed. The deceased appeared to have been strangled. His neck had been twisted and was reddish in colour. There were swellings on the leg and bruises on the head, chest and the left hand was twisted. There was also a cut on the deceased's head. However, there was no sign of a struggle at the said scene. The body was photographed and then transported to the mortuary at North Kinangop Mission Hospital.

13. When the suspects were shown to PW4 and PW6, they recognized the 2nd Appellant who was the deceased’s neighbour. Both PW4 and PW6 also recognized the blue blood stained jacket that the 2nd Appellant was wearing as belonging the deceased. PW10 immediately took the jacket and retained it as an exhibit. He also caused a sample of the deceased's blood to be taken for purposes of analysis and comparison with the blood stains on the recovered jacket. He then asked the suspects where they had taken the deceased's clothes and they disclosed that they had thrown them in a pit latrine at Njura Primary School. PW6 managed to retrieve the deceased's clothes from the said pit latrine with the help of members of the public. Later, the OCS, Elias Kiptoo recorded the Appellants’ statements under inquiry. However, the third suspect, Muhinja, escaped from police custody on June 1, 2016 and an inquiry was opened.

14. PW11, Dr Patrick Kiruki, a senior medical doctor based at the County Referral (J M) Hospital, Nyandarua, carried out an autopsy on the body of the deceased on June 6, 2016. He found that the deceased had severe head trauma with extensive bruises on the head, chest and abdomen. The bruises had exposed internal organs. On the upper part of the head, he had a fracture of the left humerus and left elbow. He also had a fracture of the spinal column among other serious injuries. He formed the opinion that the cause of death was severe trauma of the head, chest and abdomen. He further opined that a blunt object may have been used to hit the deceased and that is why he had massive bleeding internally. PW11 prepared a Postmortem Report which he duly produced in evidence.

15. PW7, Susan Wanjiru Ngugi, from the Government Chemist Nairobi informed court that on June 17, 2016, they received various items accompanied by an exhibit memo from Kipipiri Police Station. The items were as follows: blood sample belonging to the deceased, a yellow T-Shirt in a khaki envelope belonging to the deceased, a cream jacket in a khaki envelope marked as belonging to the 1st Appellant and a blue jacket in a khaki envelope marked as belonging to the deceased and which was said to have been recovered from the 2nd Appellant. They were required to examine the items and determine the presence and origin of any blood stains. They found that the yellow T-Shirt and the cream jacket were likely stained with blood of human origin. The blue jacket was moderately stained with blood of human origin. The conclusion was that the DNA profile generated from the blood stains on the cream jacket and the blue jacket matched the DNA profile generated from the deceased’s blood sample. The blood stains on the yellow T-Shirt did not generate any DNA profile. PW7 produced a report dated December 13, 2018 which was prepared by her colleague in that regard.

16. During trial, PW10 informed the court that the third suspect escaped from the police cells and that is why he only charged the Appellants herein. On the other hand, PW1 testified that she had the opportunity to talk to the two Appellants and that the 1st Appellant informed her that he was ordered to kill the deceased by the 2nd Appellant since the deceased had recognized him during the robbery incident.

17. When placed on their defences, the Appellants elected to give unsworn testimonies and called one witness. DW1, the 1st Appellant herein testified that he used to live in Githogoro Estate, Nairobi but he had leased a piece of land at Ranching area in Nyandarua County. He left Nairobi on May 27, 2016 and went to check on the potatoes he had planted on the leased parcel of land. On May 28, 2016, he proceeded to his farm to do some weeding and did that up to May 30, 2016. On May 31, 2016, he left his house at 5. 00 am as he was travelling back to Nairobi. He got to the stage at around 5. 30 am and after 15 minutes, a vehicle arrived and he boarded it. When they reached Cereals Board area, the vehicle was stopped and a police officer entered. The police ordered that anyone who had boarded the vehicle at Kahiga stage should alight. Since he boarded the vehicle at the said stage, he alighted and found an officer who told him to go back into the vehicle and directed that the same be driven to the Police Station.

18. At the Police Station, the police repeated their earlier instruction that anyone who had boarded the vehicle at Kahiga Stage to alight and he complied. As soon as he alighted, he was arrested and escorted to the Police Cells where he was locked up. Around two minutes later, the 2nd Appellant and another person who was not before court were brought into the same cells. They remained in the cell from 6. 00am to around 10. 00 am when a vehicle arrived and they were ordered to board it. While in the said vehicle, the police brought in some items which were packed sacks and bags as well as a generator, keyboard and speakers. They were then escorted to Miharati Police Station where they were put in the cells. After ten minutes, a police officer took him to the crime office where he found six more officers. They told him that they were going to ask him three questions and threatened to kill him if he did not cooperate.

19. They interrogated him about the subject robbery incident and he told them that he knew nothing. They then tied up his hands and legs and beat him up. He was taken back to the cell then at around 9. 00 pm, he was subjected to further interrogation and beatings. He was then forced to sign some papers whose contents he was not shown. He signed just to avoid being killed then he was put back in the cell. The following day, he was arraigned before Engineer Law Courts where the investigating officer sought five days to complete his investigations. He requested that he be taken to Hospital but he was taken to Engineer Police Station instead and he remained there until June 9, 2016 when he was taken to Naivasha High Court. He was charged with the offence of Murder before the said court and a hearing date was fixed. On the hearing date, two witnesses testified. However, on the subsequent date, it was said that they ought to have been charged with the offence of robbery with violence. The charge of murder was then withdrawn but they were arraigned before the lower court where they were charged with the offence of robbery with violence. On September 12, 2019, he called one Njoroge, who had leased land to him and asked him to be his witness but he declined and stated that his faith does not allow him to testify in court.

20. DW2, the 2nd Appellant's defence was that he was a farmer and he had a tree planting project. On May 31, 2016, he woke up in the morning and proceeded to the site of his tree planting project at Malewa. He watered the trees and thereafter proceeded to Kahiga Stage where he boarded a vehicle. The vehicle then set off but it kept picking more passengers on the way. When they reached a place called Kona Mbaya, it picked three Administration Police officers who sought to know the passengers who had boarded the vehicle at Kahiga Stage. He revealed himself and he was ordered to step forward. The vehicle was then driven to Leleshwa Administration Police Post where he was ordered to alight and was put in the Cell. This was at around 6. 00 am. At around 10. 00 am, he was ordered into a Kipipiri Police Station Land-cruiser along with others. In the land cruiser, he saw some items which had been kept in sacks but he could not tell what they were. He was escorted to Kipipiri Police Station.

21. At the said Police Station, he was put in the cell and thereafter was interrogated. He stated that he was beaten up and forced to sign some papers whose contents were unknown to him. At around 11. 00 pm on the same day, they were ordered out of the cell and asked to stand on the verandah. Since he was in pain, he sat down at the veranda then later went back to the cell to sleep. After about 30 minutes, he heard gun-shots. He later learnt that some suspects had escaped from police custody. On 1st June, 2016 at around 6. 00 am, he was put in a vehicle with two others and ferried to Engineer Law Courts where the police sought two days to complete investigations. He asked to be taken to hospital for treatment since he was in pain but nothing was done. He was taken back to the cell where he stayed until June 9, 2016 when he was escorted to Naivasha High Court. The Deputy Registrar made orders that he be taken to Hospital for treatment but the orders were not complied with. It was only until June 21, 2016 that he was taken to Hospital by the prison authorities. Subsequently, he took plea for Murder before the High Court at Naivasha on July 5, 2016. He denied the charge and on the hearing date, two witnesses testified before the case was thrown out. On July 12, 2017, he was arraigned again before a magistrate court where he was charged with the offence of robbery with violence alongside the 1st Appellant who was a stranger to him.

22. DW3, Peter Karenju Muturi testified that on May 31, 2016 at around 11. 30 pm, he was at Kipipiri Police Station when police officers called them out. The officers then asked him, one Charles Mbugua and one Ng'ang'a, to call their people and inform them that there was a police officer who wanted to help them. Charles Mbugua and Ng'ang'a called their people but his people could not be reached. One of the officers later came to their cell, picked them up and escorted them to the road and told them to go away. After a short while, he heard gun-shots. He did not know what was happening since he went away never to come back as they had been instructed. He confirmed that the Appellants herein found him in the police cell.

Analysis and determination 23. Upon a careful reevaluation of the evidence on record and consideration of the Appellants’ written submissions, I have isolated four issues for determination namely;a.Whether PW1 was stood down to be couched on what to say in court.b.Whether the trial should be declared a nullity.c.Whether the prosecution proved its case to the required standard of proof; and,d.Whether the sentence imposed by the trial court should be set aside.

Whether PW1 was stood down to be couched on what to say in court. 24. The Appellants contended that PW1 gave contradictory evidence in her fresh evidence after being stood down. According to them, the prosecution stood down PW1 so as to couch her on what to say in her fresh evidence and not because they needed to amend charges.

25. I have examined the record. The Appellants took plea in respect of the subject offences on July 12, 2017 before the Chief Magistrate’s Court in Naivasha. Thereafter, the file was transferred to Engineer Law Courts for hearing whereupon PW1 took the stand but was stood down upon an application by the prosecution to amend the charge sheet to reflect the correct dates that the offences were allegedly committed. The fresh charge sheet was admitted on May 16, 2018 and the Appellants took fresh plea then the prosecution recalled PW1 to give fresh evidence. The Appellants did not raise any objection and thus PW1 testified afresh on June 25, 2018. This was pursuant to the provisions of Section 214 of the Criminal Procedure Code. Further, I have compared the evidence given by PW1 before and after she was stood down and I have not seen any material difference. To that, I find that the Appellants’ allegation that PW1 was stood down to be couched is unfounded.

Whether the trial should be declared a nullity. 26. On this, the Appellants faulted the trial court for failing to find that their confessionary statements under inquiry were obtained through threats and physical torture by the police. They asserted that the same was obtained contrary to the procedure under Section 25A of the Evidence Act and in contravention of their constitutional rights and freedoms under Article 25(a), Article 29, Article 49(1) d) and Article 50(4) of the Constitution. The 2nd Appellant submitted that under Article 22(1) of the Constitution, every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The 2nd Appellant further argued that they do not have to lodge a formal constitutional petition to seek redress as this court has unlimited original jurisdiction in criminal and civil matters under Article 165 of the Constitution and for this, he relied on the case of Patrick Gilbert Cholomondley v Republic [2008] eKLR. They urged this court to declare their trial a nullity in view of this claim and quash their convictions as well as sentences.

27. I have read the trial record. Notably is that none of the Appellants raised the issues that they were forced to give a confession when the prosecution was adducing its case. There was also no objection to the production of their charge and cautionary statements in which they admitted having committed the offence. The issue was only raised at the defence hearing and even then they alluded to have been given some documents to sign which they did not know of. With this in mind, I conclude that the confession taken by the police was not so obtained under duress and such assertion was an after though. Further, even if they were assaulted, it was not for purposes of obtaining the confessions.

28. If indeed there was a violation of the Appellants’ constitutional rights, the same did not automatically vitiate the trial or result in a right of acquittal. The Court of Appeal in Musa Shaban Kabughu v Republic [2020] eKLR held that such violation would instead give rise to a different cause of action which is a civil claim for damages or a claim for the violation of his constitutional rights. I associate myself with the said sentiments entirely. The conviction of the Appellants cannot be quashed because of an alleged violation of constitutional rights committed by police officers. For that reason, the trial cannot be declared a nullity.

Whether the prosecution proved its case beyond a reasonable doubt 29. In order to determine this issue, this court is first enjoined to consider whether the evidence on record establishes the offence of robbery with violence. The offence is established where the prosecution proves that there was theft of property under any of the aggravating circumstances enumerated under Section 296 (2) of the Penal Code. These are:a.The offender is armed with a dangerous or offensive weapon or instrument; orb.The offender is in the company of one or more person or persons; orc.If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any personal violence to any person.

30. PW1 testified that the deceased left home on May 30, 2016 at 2. 00 pm to go to their shop at Njura but did not return home that evening. PW1 and PW6 confirmed that they visited the deceased’s shop on the morning of May 31, 2016 and found the door unlocked and some items including music equipment belonging to Njura Full Gospel Church which were stored therein were missing. Whereas there was no eyewitness who saw the shop being robbed, three people were arrested that morning in possession of the items listed on the charge sheet and the police established that the same had been stolen from the deceased’s shop.

31. Further, the evidence on record clearly establishes that the offenders wounded, beat, struck and used personal violence on the deceased. There is consistent and corroborated evidence that the deceased whose shop was robbed was nowhere to be found when PW1, PW4 and PW6 visited the shop on the morning after the robbery and a report was duly made at the Turasha Administration Police Post. The body of the deceased was recovered later that day at Ngecha Farm with wounds on various parts of the body. An autopsy conducted by PW11 revealed that the deceased had severe head trauma with extensive bruises on the head, chest and abdomen which injuries had exposed his internal organs. The deceased also had fractures on the left humerus, left elbow and spinal column. PW11 formed the opinion that the cause of death was severe trauma of the head, chest and abdomen caused by a blunt object. In the premises, I find that the evidence tendered by the prosecution duly establishes the offence of robbery with violence.

32. The next issue is whether the Appellants were positively identified as having committed the robbery with violence. As already noted hereinabove, there was no eye witness in this case and thus the Prosecution’s evidence in this regard was largely circumstantial. It is trite law that for a conviction to stand on the basis of circumstantial evidence, the evidence adduced by the prosecution witnesses must irresistibly point to the guilt of the accused and no one else as the person who committed the offence. This was aptly established in the case of Joan Chebichii Sawe v Republic [2003] eKLR where the Court of Appeal held that:“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused.”

33. In the case of Ernest Abanga alias Onyango v Republic CA No. 32 of 1990 (UR) the Court of Appeal also laid down three principles of circumstantial evidence as follows:“i)The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;ii)Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii)The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

34. Firstly, there is sufficient corroborated evidence on record that the Appellants were found in possession of goods which had been recently stolen from the deceased’s shop. PW2’s testimony that the Appellants boarded a bus with suspicious luggage was corroborated by both PW8 and PW9. PW8 intercepted the said bus after receiving an alert and ordered that it be driven to Turasha Administrative Police Post where the Appellants she ordered the Appellants to alight with their luggage. PW9 was able to identify the luggage that the Appellants had when they boarded the bus since he was the conductor of the said bus. Additionally, PW4, PW5 and PW6 positively identified the items when they went to Kipipiri Police Station where the Appellants were escorted upon arrest.

35. Secondly, the 2nd Appellant was found in exclusive physical possession of a blue jacket which was identified as belonging to the deceased by PW4, PW5 and PW6. Further, forensic evidence established that the DNA profile from the blood stain found on the said jacket matched the DNA profile from the deceased’s blood sample.

36. Under the doctrine of recent possession, where it is proved that property was recently stolen and the same property is found in the exclusive, physical or constructive possession of another person, the person is presumed to have participated in the crime that resulted in the theft of that property or to know the circumstances under which the theft took place. The presumption is however a rebuttable one meaning that the accused is required to offer an explanation in rebuttal but if he fails to do so, an inference is drawn that he either stole or was a guilty receiver. The doctrine is buttressed by Section 119 of the Evidence Act which states as follows:“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, or qualification to, the operation of the law enacting the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him.”

37. In the instant case, the Appellants upon being placed on their defence denied any knowledge of or connection with the stolen property that was recovered in their possession. They claimed to have found the items at the police station despite the overwhelming evidence by the prosecution. In the circumstances, the only inference that could be drawn was that they participated in the robbery or they were guilty receivers.

38. The second piece of evidence that connects the Appellants with the robbery is the fact that the Appellants directed the police to where they had dumped the body of deceased. PW10 stated that he left the Appellants in the cells and together with other officers, they went to where the Appellants had directed him and retrieved the body. This means that the Appellants had exclusive knowledge of the whereabouts of the deceased.

39. In their submissions herein, the Appellants contended that they were framed up with the offence. The 1st Appellant argued that PW4’s testimony was that he and the 2nd Appellant had a habit of stealing shows that they were charged out of suspicion. On the other hand, the 2nd Appellant contended that that meant that PW4 had a grudge against him. This court rejects this late line of defence as an afterthought and also because there was no evidence of such a grudge.

40. Further, the Appellants took issue with the fact that the inventory list of the recovered items was not signed by PW10. They argued that PW10 ought to have signed the document despite the fact they refused to do so themselves. They also questioned why the recovered items were not photographed or dusted for fingerprints. Indeed, it is clear from the record that PW10 admitted that he did not sign the inventory of the recovered items and neither were the items subjected to dusting for finger prints. However, this did not water down the clear, consistent and corroborated evidence PW2, PW7 and PW8 that the items were recovered from them and no one else. I am therefore satisfied that Appellants were not prejudiced in any way by the said omissions.

41. In addition, the Appellants faulted the report from the government chemist for being full of errors. They argued that the report was not for the subject case as PW7 referred to an unknown criminal case number in the exhibit memo purportedly received on June 17, 2016. In her evidence in chief, PW7 testified that on June 17, 2016, they received a number of items and an exhibit memo of even date in respect to Criminal Case No 244/80/2016 from Kipipiri police station. Whereas it is not clear where the case number emanated from as nobody raised the issue during trial, PW7’s testimony was duly corroborated by PW10 who confirmed that he personally prepared the said exhibit memo and forwarded the accompanying items for forensic analysis. For that reason, I am not persuaded that PW7’s testimony can be disregarded on that basis.

42. It was also the Appellants’ contention that the report from the government chemist should be rejected because the entries were not made correctly. I note that PW7 explained the error in her evidence in chief. She stated that there was a typographical error in the table of DNA profiles in the report. It was her testimony that whereas the DNA profile is well tabulated, the column for item ‘N’ ought to read deceased’s blood and not deceased’s jacket as the latter was item ‘K3’. I have carefully studied the report and I have no reason to doubt that explanation.

43. Moreover, the Appellants contended that the prosecution case was riddled with inconsistencies and contradictory evidence. The Appellants pointed out the following: That PW9 stated in his police statement that the three suspects boarded the bus at Kabati while in court, he testified that they boarded at Kahiga; that PW2’s testimony that he called AP CPL Wambugu to alert traffic officer in attempt to intercept the bus differed from PW10’s account that AP CPL Wambugu and PW8 told him that PW2 secretly pointed at the three men seated; that the luggage explained by PW2 differed from those stated by PW9; that PW8’s testimony that none of the suspects were holding was inconstant with PW2’s testimony that one of them had a bag and a piano; that the witnesses gave contradictory testimonies on the time that the Appellants allegedly boarded the bus. PW2 said they boarded at about 6:15am; that PW8 said in court she was alerted at 5:45am while in his police statement, AP CPL Wambugu stated that he alerted PW8 at about 5:30 am; that PW9 stated in court that he was called by the OCPD Kipipiri Police Station to take back the white sack which inadvertently remained in the bus yet in his police statement he stated that he was called by the OCS; that PW4, PW5 and PW6 gave contradictory accounts of the items they saw at the police station; that the jacket that the 1st Appellant had won was described in three colours namely green, blackish and cream while the jacket allegedly recovered from the 2nd Appellant was described as green by PW7 and PW8 and blue by others. In their view, these inconsistencies created a doubte which ought to be resolved in their favour.

44. In Philip Nzaka Watu v Republic[2016] eKLR, the Court of Appeal held that:“….Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised 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.”

45. In Dickson Elia Nsamba Shapwata & Another v The Republic, Cr App No 92 of 2007, the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:“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.”[Emphasis mine]

46. In the instant case, whereas I appreciate that there were some inconsistencies in the evidence of the prosecution witnesses, I hold the view that the same were so negligible and immaterial that they did not go to the root of the matter. This ground therefore fails.

47. In addition, the Appellants took issues with the failure by the prosecution to call Corporal Wambugu who relayed the message of suspected robbers to PW8 and AP Kirui who was present during arrest to testify. Reliance was placed on the case Bukenya & others vs Uganda 1977 EA 549.

48. Under Section 143 of the Evidence Act, no particular number of witnesses is required to prove any fact unless it is expressly required by law. This means that the prosecution is not obliged to call all witnesses who may have information on a fact but only those that can sufficiently prove a charge.

49. In the upshot, I find that the prosecution proved beyond any reasonable doubt that the Appellants robbed the deceased. The Appellants conviction for the offence of robbery with violence was therefore sound and is hereby upheld.

Whether the sentence imposed by the trial court should be set aside 50. The Appellants were sentenced to serve thirty (30) years imprisonment each. Sentencing is essentially an exercise of discretion by the trial court and for that reason, an appellate court will not interfere with the sentence imposed unless it is shown that in passing the sentence, the court took into account irrelevant factors or applied wrong principles or the sentence was manifestly harsh. See: Shadrack Kipchoge Kogo v Republic Criminal Appeal No. 253 of 2003.

51. Under Section 296(2) of the Penal Code, a person convicted for the offence of robbery shall be sentenced to death. (emphasis mine). What this implies is that both Appellants ought of have been sentenced to death. However, in this case, it appears that by oversight, the Appellants were not given a notice of a possible enhancement of the sentence in the event that the conviction was upheld. On this ground, this court is disinclined to set aside the respective 30-year jail terms imposed by the learned trial magistrate.

Conclusion 52. In the upshot, I find that the two appeals lack merit. They are accordingly dismissed in entirety. I uphold both the conviction and sentence.

Dated and Delivered at Naivasha this 14th Day of July, 2022. ...................................G W NGENYE-MACHARIAJUDGEIn the presence of:1. 1st Appellant in person.2. 2nd Appellant in person.3. Miss Maingi for the Respondent.