[2008] KEHC 3222 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS

Criminal Appeal 108 of 2006

MAURICE ONYANGO KIRAH .……………………… APPELLANT

VERSUS

REPUBLIC………………………………………...... RESPONDENT

(Being an appeal from the judgment of the Senior Resident Magistrate Mr S.A. Okato delivered on 18/08/2006 in Machakos Criminal Case No. 1049 of 2006)

JUDGMENT

1. The Appellant herein, Maurice Onyango Kirah was charged with 2 counts of the offence of robbery with violence in Machakos CM’S Court Criminal Case Number 1049/2006. On Count I, it was alleged that:-

“On the 22nd day of January 2006 at K.M.C. Phase II Estate, Athi River Location in Machakos District within Eastern Province jointly with other not before court and being armed with dangerous weapons namely pangas robbed Janet Atieno Oloo of 1 T.V make Great Wall, 3 radios make Goodman, 1 battery, 1 sewing machine, 2 lamps, 1 Mountain Bike, assorted clothes and shoes all valued at Kshs. 60,000/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Janet Atieno Oloo.”

2. On Count II, that:-

“On the 22nd day of January 2006 at Machakos District within Eastern Province, jointly with others not before the court and being armed with dangerous weapons namely pangas, robbed B A O of a radio make National Star, shoes and cash Kshs. 500/= all valued at kshs.1,700/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Beatrice Awino Okeyo.”

3. It is our duty as the first appellate court to evaluate, analyse and appreciate the evidence tendered before the trial court and reach our own decision inspite of the fact that we lack the advantage of having seen the witnesses testify.

4. The evidence tendered was as follows:-

PW1 Janet Atieno Oloo was asleep in her house within Athi-River together with her children and PW2, B A O when robbers struck at about 1. 00 a.m. According to PW1, the gang flashed torches and demanded money from her. She had only Kshs. 50/= which they took and they ordered her to strip naked and she did after which they tied her with a rope and when one attempted to rape her, his accomplice stopped him from doing so. They removed household goods and left. Later, her children untied her and she reported the incident at Athi-River Police Station at 6. 00 a.m. She was unable to recognize any of the robbers on the material night.

5. According to PW2, she was asleep in the kitchen within PW1’s house when she heard a bang on the main door and suddenly she was ordered to lie down. One robber tied her hands and covered her eyes with a piece of cloth. One other tried to rape her but she told him that her husband had died of AIDS and as they were talking, another robber flashed his torch on the one talking to her and she saw his face. She later identified him in court as the Appellant. The Appellant hit her on the thigh with a panga as he left alone. She noticed that her handbag containing medicine and Kshs. 200/= was taken by the robbers and she reported the incident together with PW1 at Athi-River Police station later that morning.

6. When the Appellant cross-examined PW2 she said this inter-alia:-

“You were among the people who robbed us. I did not give the police the particulars of your appearance… No parade was conducted…

In my statement there is nowhere I recorded that if I saw the person who threatened to rape me I would be able to recognize him…”

7. PW3, Tom Okello Ago, was returning to his house from night duty and at 6. 30 a.m on his way, he met PW1 and PW2 who informed him of the robbery. He accompanied them to Athi-River Police Station and their report was made. At his house he noted the stolen items and left the investigations to the police. On 27/5/2006, he took a friend’s DVD player for repair at Athi-River Township and in the repair shop, he saw a car radio cassette player that he identified as one of the items stolen from his house during the robbery, 4 months earlier. He reported the matter to the police and PW4, Jackson Wambua was arrested.

8. PW4 led the police to PW5, John Omondi Adare who had sold the stolen item to PW4. PW5 then identified PW6, Jacob Onyango Oduka as the man who had brought the item to him for repair. PW6 when arrested stated that it was the Appellant and one Odhiambo who had brought the item to him and he passed it on to PW5 who repaired it and since the Appellant was unable to pay the charges, the cassette player was sold to PW4 and the balance of the purchase price given to him. PW6 also led the police to arrest the Appellant who had no explanation as to how he came to be in possession of the stolen thing.

9. PW7, P.C. Lawrence Etiang is the one who investigated the case, arrested the Appellant and later charged him.

10. When the Appellant was put on his defence, all he said was that he was arrested on 1/6/2006 because he had differences with PW6 over a girlfriend, one Mwikali, whom they both claimed to have a love affair with. That he knew nothing of the alleged robbery and that he thought it was PW6 who framed him up with the connivance of PW7 because of the relationship he had with Mwikali.

11. It is instructive that Mwikali was not called as a witness.

12. Our analysis and evaluation of the above evidence is as follows:-

On count 1, the complainant PW1, J A O was unable to recognize any of the robbers who robbed her on the material night. The only evidence that she gave which connected the Appellant with the alleged robbery was the recovery of her husband’s car radio cassette player which evidence was corroborated by PW3, her husband as well as PW4, PW5, PW6 and PW7 which chain-linked evidence later led to the arrest of the Appellant.

On count II, the evidence is slightly different in that PW2, B A O said that she was able to identify the Appellant at the scene when one of his accomplices flashed a torch at him as he prepared to rape PW2. It was the same accomplice who stopped the Appellant from raping PW2 whereupon the Appellant allegedly hit her with a panga on the thigh and then left. What was taken from PW2 was a bag containing medicine and Kshs.200/= but the charge sheet says otherwise. Some of the items in the charge sheet in respect of Count II cannot have been robbed from PW1 and PW2 at the same time and vice-versa. PW2 herself said nothing about Kshs.500/= being taken from her or a radio make National Star being one of the stolen goods. It was infact PW1 who stated as follows:-

“They ransacked the entire house. I heard them removing my property from the house.”

13. It has been said time and time again that the particulars of offence in the charge sheet must ultimately be proved in evidence. We have anxiously considered this anomaly in the charge sheet and we are of the view that in view of the other evidence tendered in this case, the error is one that is perfectly capable of being cured by section 382 of the Criminal Procedure Code which provides as follows:-

“382. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

14. We have taken this view because all evidence tendered particularly by PW1 and PW2 would lead one to the conclusion that on the material night there was indeed a robbery in a house where both witnesses who are related by marriage were occupying. PW3, Tom Okello Ago, the man of the house was away until 6. 30 a.m in the morning and confirmed when he got home that all the items listed in the charge sheet were indeed stolen during the violent robbery. One of the items was a car radio cassette whose recovery led to the arrest of the Appellant. In our view no prejudice would be caused to the Appellant even with the apparent error in the charge sheet and we are appropriately guided by the decision in Ibrahim Ali Adake vs R Cr. Appeal No. 125/2006 (U.R) and that is all to say on this matter.

15. We also deem it necessary to say something about the Appellant’s purported identification at the scene by PW2. She stated as follows:-

“One man came to me with a panga. He made me to lie on my back and asked to have sex with me… There was no lamp on but that person had a torch and as we were talking his accomplice came in and flashed a torch at him and told him not to have sex with me but to carry the property. When the torch was flashed at him I saw him clearly and he is the accused in the dock.”

16. No other witness was able to identify the Appellant at the scene but we are uncomfortable with PW2’s identification. As was stated in Abdalla bin Wendoh vs R (1953) 20 E.A.C.A 166 at 168:-

“there is need to test with the greatest care the evidence of a single identifying witness respecting identification especially when it is known that the conditions favouring correct identification were difficult.”

17. Here is a witness in darkness being threatened with rape by an armed stranger and she says that an accomplice of the stranger flashed his torch and she is able to later identify the stranger. With respect, it is unclear to us how long the “flash” took and there is no evidence that PW2 had any reason for saying that she identified the Appellant and what description she gave of him. No identification parade was conducted to test her purported identification and as was said in Abdallah bin Wendoh (supra) there is need for “other evidence, whether it be circumstantial or direct pointing…” to the guilt of the Appellant and in this case the only other evidence which we need to turn to is the recovery of the car radio cassette and the subsequent arrest of the Appellant.

18. PW3 stumbled upon the car radio cassette on 27/5/2006 (some months after the violent robbery) when he went to a radio mender’s shop in Athi-River where he took a DVD player for repair. While there, he recognized the car radio cassette player because of two special features; the sticker at the front had been removed while the sticker at the back had his name inscribed but on that day it had been plucked off. The cassette player had also apparently been previously repaired at the same shop. PW1 had in evidence also described the item in her evidence and we see no reason to doubt them for reasons to follow shortly.

19. In any event, once PW3 saw the stolen item, he rushed to the police and investigations commenced. PW 5, the radio repairer produced PW4 who had bought it from PW5 sometime in February 2006. PW4 had paid Kshs.700/= and PW5 gave PW6 Kshs.400 as the balance after deducting his repair charges. PW6 had himself received the item from one Odhiambo who was in the company of the Appellant. When the item was given to him it was the Appellant who was carrying it and after handing it over to PW6, he also left his mobile phone number and once it was repaired he was called to come and collect it but the Appellant said that he had no money to pay for it and later came to see PW6 and told him to sell the cassette player and recover his money. That is how the innocent purchaser, PW4 came to the scene.

20. It was PW6 who led the police to arrest the Appellant and according to PW7, the investigating officer, when he and his colleagues tried to arrest the Appellant he resisted but as regards the radio cassette player of interest is evidence that later the Appellant admitted that he had “recovered” the same from a matatu he had washed in the normal course of his work as a “car washer”. We take no notice of that confession for reasons that it was not properly obtained.

21. What is the value of this evidence? Our view is that the trail of evidence leading to the arrest of the Appellant has no flaw. We say so because between PW3’s discovery of his stolen radio cassette player and the arrest of the Appellant, each witness in between was able to explain precisely how to he came to be in possession at different periods of the stolen item. Only one person had no explanation; the Appellant. He was properly deemed to have been either the thief or a receiver of it. This is the law as was well set out in Hassani s/o Mohamed (3) (1948) 15 EACA 121 at 122 where it was stated as follows:-

“On that finding (i.e. the possession of property recently stolen) in the absence of any explanation by the Appellant for his possession a presumption does arise that the appellant was either the thief or the receiver…”

22. The learned judges in that case went on to hold that “it is a presumption of fact, and not an implication of law from evidence of recent possession of stolen property unaccounted for” that would be the basis for the inference of guilt.

23. We have no doubt that the Appellant had possession of the stolen item in February 2006, a number of days after the robbery committed on 22/1/2006. When he was arrested in May 2006 he had no explanation as to how he came to be in possession of it. Either he was therefore the thief or a receiver of it.

24. The evaluation above would necessarily lead us to the Appellant’s statement of defence. He blamed his arrest on differences he had with PW6 over a common girlfriend, one Mwikali. Mwikali was never called as a witness and the Appellant had no serious answer to the serious charges laid against him. His defence was a mere afterthought and has no assistance to him.

25. What should we do with this Appeal in view of all our findings above? There is no doubt that the Appellant was found in possession of stolen property, he being probably either a receiver or a thief as per the evidence before us. He has given no explanation whatsoever how he came to be in possession thereof. There is evidence that the offence of robbery with violence was committed as stated by PW1 and PW2. All the doubts in the case cannot favour the Appellant in these circumstances.

26. We have little choice but to dismiss the Appeal in its entirety.

27. Orders accordingly.

Dated and delivered at Machakos this 16th day of April 2008.

J.B OJWANG’ ISAAC LENAOLA

JUDGEJUDGE