[2018] KEHC 4524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO 146 OF 2017

MEHTAB AHMEDALI HESSEIN SHAH......APPELLANT

VERSUS

REPUBLIC......................................................RESPONDENT

(From original conviction and sentence in Criminal Case Number 2396 of 2015 in the Chief Magistrate’s Court at Kiambu by Hon J. Kituku (PM) on 18th October 2016)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Mehtab Ahmedali Hessein Shah, was charged with the offence of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code Cap 63 (Laws of Kenya). The particulars of the charge were that on the 4th day of October 2015 at around 9. 30 am along Ruaka-Gachie road within Kiambu County, with others not before court, while armed with a pistol, they robbed Mr George Mwanga Onguso (hereinafter referred to “PW 1”), a motor vehicle registration number KCD 728A Toyota Probox (hereinafter referred to as “the subject Motor Vehicle) valued at Seven Hundred and Fifty Thousand Shillings (Kshs 750,000/=) the property of the said PW 1 and at the time of such robbery used actual violence to the said PW 1.

2. He was also charged with an alternative charge of handling stolen property contrary to Section 322 (1) (2) of the Penal Code. The particulars of this offence were that on the 4th day of October 2015 at around 2. 30 pm at Mathara trading centre along Timboroa- Nakuru road within Nakuru County, otherwise (sic)in the course of robbing, dishonestly retained the subject Motor Vehicle, the property of PW 1 knowing or having reason to believe it to be a stolen good.

3. The Learned Trial Magistrate, Hon J. Kituku, Principal Magistrate, convicted him of the offence of robbery with violence and imposed on him the death sentence as was prescribed under the law.

4. Being dissatisfied with the said judgment, on 14th December 2016, the Appellant filed a Chamber Summons seeking leave to file his Appeal out of time, which application was allowed and the Petition deemed to have been duly filed. He relied on five (5) Grounds of Appeal. On 21st March 2018, he filed Amended Grounds of Appeal and Written Submissions. This time he relied on five (5) Amended Grounds of Appeal.

5. When the matter came up for hearing on 21st March 2018, the State submitted orally in court.

LEGAL ANALYSIS

6. As this is a first appeal, this court analysed and re-evaluated the evidence afresh in line with the holding in the case of ­Odhiambo vs Republic Cr App No 280 of 2004 (2005) 1 KLRwhere the Court of Appeal held that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanor”.

7. Having considered the Appellant’s and State’s Written Submissions, this court found the issue that had been placed before it for determination was really whether or not the Prosecution proved its case against the Appellant beyond reasonable doubt.

8. The Appellant referred to the case of Ramadhan Ahmed vs Republic EACA [1955] Vol 22 at page 395where it was held that in a first appeal, the onus is on appellant to show that the findings of the trial court were unreasonable and could not be supported having due regard to the evidence that was adduced.

9. He submitted that the Learned Trial Magistrate misapplied the doctrine of recent possession because there was no evidence that was adduced to support his holding that he was found in constructive possession of the subject Motor Vehicle.

10. He was emphatic that there was no evidence that he touched the said Motor Vehicle. He stated that no finger print impressions were taken or dusted from the said Motor Vehicle linking him with constructive possession of the same.

11. He pointed out that the Prosecution had led evidence to show that he was found a top a tree in the bush and consequently, there could be no constructive possession in such a case. He said the circumstances of the case herein were distinguishable from the case of Arum vs Republic which the Learned Trial Magistrate relied upon to conclude that the doctrine of recent possession was applicable herein. He placed reliance on the case of Isaac Nanga Kahiga vs Republic Cr App 272 of 2005 (UR).

12. He averred that crucial witnesses were not called to explain how the subject Motor Vehicle came to be guarded or where the five (5) men who were said to have robbed PW 1 ran to. He contended that this would have removed any doubt relating to his identification and emphasised that PW 1 ought to have given the exact description of his attacker.

13. It was his submission that the onus was on the Prosecution to prove its case against him beyond reasonable doubt but that instead, it had shifted the burden of proof to him. He was emphatic that his alibi defence displaced the Prosecution’s case. He therefore urged this court to allow his Appeal.

14. On its part, the State submitted that the Prosecution had proved all the ingredients of the offence of robbery with violence as the Appellant was found in possession of the subject Motor Vehicle on the same date it was stolen and that he was in the company of his four (4) accomplices at the time of the robbery.

15. It further argued that the Learned Trial Magistrate considered the principle of res gestae that led to the arrest of the Appellant in the forest after he ran away when him and his accomplices were accosted by police officers. It stated that the evidence that was adduced was cogent and emphasised that the present case was not the first case facing the Appellant because as at the time of hearing the case herein, he was already serving a sentence of three (3) years imprisonment for theft of another motor vehicle.

16. A perusal of the proceedings shows that on the material date and time, a man hired PW 1’s taxi to take eggs from South C to Ruaka. After they got to Ruaka, they diverted to a murram road. At the time, the man was accompanied by “a boy” who PW 1 had given his telephone number to the previous night with a view to the “boy’s boss” hiring the subject Motor Vehicle the following morning. They directed PW 1 to a certain house. The man who had hired the Motor Vehicle requested PW 1 to reverse as he had seen the boy’s mother.

17. As he was reversing, three (3) men, one of whom was armed with a gun came. The armed man pushed him to the back of the seat while the man who had initially hired the Motor Vehicle took control of the Motor Vehicle. The man and his accomplices drugged him and dumped him at a coffee plantation. He regained his consciousness and was assisted by good Samaritans.

18. The subject Motor Vehicle had a tracking system and was traced at Timboroa. PW 1 confirmed to the police that the said Motor Vehicle had been driven by a person of Asian extract when he was informed that the Motor Vehicle had been found being driven by an Indian. He said that he spent about ten (10) minutes with the said person and his accomplices. He identified that person as the Appellant herein. He testified that the Appellant had told him that he was called Hussein Uzi. He identified the Motor Vehicle that was ridden with bullet holes as being the one that he was driving at the material time.

19. Githinji Gachanja (hereinafter referred to as “PW 2”) confirmed having assisted PW 1 who had informed him that he had been robbed of his Motor Vehicle. David Muriu Njoroge (hereinafter referred to as “PW 3”) was the owner of the subject Motor Vehicle. He confirmed that the Motor Vehicle was tracked at Salgaa towards Nakuru. No 235215 Inspector Abel Onyapidie (hereinafter referred to as “PW 4”) took the photos of the Motor Vehicle. No 60355 PC Robert Odhiambo (hereinafter referred to as “PW 5”) was the Investigation Officer. He reiterated the evidence that had been adduced by PW 1, PW 2, PW 3 and PW 5. Dr Juma Wakanyaga (hereinafter after referred to as “PW 6”) was the Medical in-charge at Karuri Sub-district Hospital. He confirmed that PW 1 had been assaulted at the time of the robbery.

20. No 67072 Cpl Kazungu Ngumbao (hereinafter referred to as “PW 7”) was based at the Flying Squad Nakuru. He was the Arresting Officer. He stated that on receiving a report from OCS Flying Squad Karuri about the stolen vehicle, they pursued the Motor Vehicle which had a tracking system. When they got to Makara area, they saw a bullet ridden motor vehicle parked along the road. Officers were guarding it. Members of the public who had surrounded the area directed them to the forest where one of the suspects had run to. They went into the forest and found the Appellant on a tree. He surrendered. On being arrested, he was taken to Nakuru CID offices. PW 7 confirmed that nothing was recovered from him.

21. In his sworn evidence, the Appellant stated that on 4th October 2015, a client hired his services to fix a ceiling at Amagoro (Malaba). He said that he was at Timboroa market doing his shopping when police officers arrested him and put him in a bullet ridden Probox and took him to Nakuru Police Station Flying Squad. He denied knowing PW 1 and was emphatic that he had used public means when he was at Timboroa and not in the Probox as had been claimed.

22. It was not in dispute that PW 1 was robbed of the subject Motor Vehicle that belonged to PW 3 and that the same was tracked to Timboroa where PW 7 found the same bullet ridden and being guarded by police officers. What was really in contention was who robbed PW 1 of the said Motor Vehicle.

23. The Appellant adduced a defence of alibi. However, he did not call any witness to corroborate his mission at Timboroa. He told the Trial Court that his client had travelled out of the country and it was not known when she would return to Kenya and hence she was unable to come to court to corroborate his evidence. However, even if his client was out of the country, any person from his company could have confirmed the assignment that he had gone to do at Amagoro. He was faced with a very serious offence and had to marshall all the help he could get to assist his case. Weighed against the Prosecution’s case, his case appeared weaker.

24. The evidence that was adduced by PW 1 and PW 7 was cogent enough to have properly identified the Appellant herein. PW 1 spent about ten (10) minutes with him which was sufficient time for him to have recognised him at a later date. It was day time when conditions for identification were favourable. It was not necessary for an Identification Parade to have been conducted.

25. Indeed, it could not also have been a coincidence for the same person who PW 1 said had hired his Motor Vehicle and took control of the same was found in Timboroa on top of a tree where the bullet ridden Motor Vehicle was tracked to and found. The res gestae led this court to believe the Prosecution’s assertion that the Appellant was connected to the theft of the said Motor Vehicle as he was actually found not far from where the said Motor Vehicle was abandoned in a forest.

26. Turning to PW 7, he was emphatic that he arrested the Appellant who had hidden on top of a tree in the forest. It could not also have been a coincidence that the Motor Vehicle which was said to have been found in the forest was in the same forest that the Appellant was arrested from. The fact that the Appellant was found on top of a tree and was seen running from the bullet ridden motor vehicle was proof that he was not innocent. His conduct led this court to infer guilt on his part.

27. Section 296 (2) of the Penal Code provides as follows:-

a. the offender must be armed with any dangerous or offensive weapon or instrument; or

b. the offender must be in the company of one or more other person or persons or;

c. at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

28. The Charge against the Appellant could be sustained if one any of the aforesaid ingredients were present. However, in this instant case, all the ingredients constituting the offence of robbery with violence were present showing the aggravated circumstances that obtained herein.

29. The Appellant robbed PW 1 of the subject Motor Vehicle in the company of others and one of them was armed. They drugged and assaulted PW 1. PW 1 was able to identify him as the perpetrator of the offence. PW 6 also confirmed that PW 1 sustained harm at the material time of the offence.

30. Accordingly, having considered the evidence that was adduced in the Trial Court and that of the Appellant, despite the Appellant not having been found in actual possession of the subject, this court was satisfied that the Prosecution proved its case against him, beyond reasonable doubt. The Learned Trial Magistrate therefore arrived at a correct conclusion when he convicted him of the offence and sentenced him to death as prescribed by law.

DISPOSITION

31. For the foregoing reasons, the upshot of this court decision was that the Appellants Appeal that was lodged on 14th December 2016 was not merited and the same is hereby dismissed. Instead, this court hereby affirms the conviction and the sentence that was meted upon the Appellant herein as they were both lawful and fitting.

32. However, in view of the holding in the recent case of Francis Muruatetu & Another vs Republicwhere the Supreme Court found that the mandatory death sentence was unconstitutional, this court hereby directs that this matter be referred back to the Chief Magistrate’s Court at Kiambu Law Courts for re-sentencing, if need be. This matter shall be placed before the Chief Magistrate of Kiambu Law Courts on 20th August for his or her further orders and/or directions.

33. It is so ordered.

DATED and DELIVERED at KIAMBU this 14th day of August 2018

J. KAMAU

JUDGE