[2019] KEHC 11601 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT NYERI

CRIMINAL APPEAL NO. 59 OF 2015

MOSES MUCHEMI MWANGI..................APPELLANT

VERSUS

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

(Appeal against both conviction and sentence from the judgment of Hon. C.Wekesa Senior Resident Magistrate’s Court, Nyeri delivered on 3rd August, 2015 in Criminal Case No. 474 of 2013)

JUDGMENT

FACTS

1. The appellant, Moses Muchemi Mwangi, was charged with the offence of Robbery with Violence contrary to Section 296(2)of the Penal Code;the particulars of the charge are that on the 19th day of May, 2013 at Classic Area in Nyeri County, jointly with others not before the court robbed JOEL GATHUNGU KANJUA of a TV set remote, star-time decoder, 2 Nokia phones, a Total gas cylinder, a woofer all valued at Kshs.35,000/- and immediately before or after the time of such robbery used actual violence to the said JOEL GATHUNGU KANJUA.

2. The prosecution called a total of five (5) witnesses in furtherance of its case; judgment was delivered on the 3/08/2015 and the appellant was found guilty, was convicted and sentenced to death; being aggrieved with the conviction and sentence, the appellant, filed a Memorandum of Appeal on the 7th August, 2015 and listed the Grounds of Appeal as are hereunder summarized:

(i) The conviction was based on weak circumstantial evidence and was not sufficient to be relied on;

(ii) The evidence of the prosecution witnesses was contradictory and inconsistent and the trial court erred in relying on it;

(iii) The Charge was not adequately proved by the prosecution to the desired threshold;

(iv) The trial court rejected the appellant’s sworn statement of defence which was not challenged by the prosecution.

3. At the hearing hereof the appellant was represented by learned counsel Mr.Muchiri wa Gathoni whereas the State was represented by Prosecuting Counsel Ms Gicheha; both counsel made oral submissions; hereunder are parties rival submissions;

APPELLANT’S SUBMISSIONS

4. Counsel submitted that the trial court relied on the evidence of PW1 a brother of the appellant; who had been previously charged with the appellant but was later released and became a state witness; PW1 stated that the phone was given to him by the appellant; PW1 gave the date he was given the phone as 15/05/2013 and on the date he states as having been given the phone the offence had not happened; PW1 being a minor his evidence required corroboration; the mother of the appellant stated that she had seen the phone on the 17/05/2013 which was also before the offence was committed;

5. PW2 and PW3 stated the offence was committed on the 19/05/2013; their evidence did not place the appellant at the scene; and even during the Identification Parade they were not able to identify the appellant;

6. The dates given by the prosecution witnesses definitely cast doubts in the prosecution’s case; which doubts ought to have been resolved in favour of the appellant;

7. The evidence on record was not sufficient to prove the offence the appellant was charged with as it does not indicate that the appellant was found in possession of the mobile phone; nor does it show that he used the phone before or after the robbery; his contention was that the doctrine of recent possession could only be applied where the accused was found in possession of the stolen item; or it is shown how he used it at some point and passed it on to someone else; the evidence of the Investigating Office (PW5) indicated how he tracked the phone but there is no evidence at all on record to show that the cell phone line used belonged to the appellant; no SIM card or data used on the cell phone was produced before the trial court;

8. The onus was on the prosecution to lay a basis for the doctrine by tendering evidence; the Investigating Officer’s evidence showed that the brother (PW1) was the handler; under cross-examination he confirmed that he had no documentary evidence to support the tracking and how it was done; that they did not find the phone at the home of PW1 and the appellant as their father had gone with it; the father had used the phone yet no data information was availed to show whether he had used it before the commission of the offence, during the commission of the offence or after the commission of the offence;

9. Counsel urged this court to find that from the prosecution evidence the doctrine was not available or applicable in this matter;

10. The appellant contends that the trial court ignored the defence he raised on the issue as to whether his mother saw him hand over the mobile phone; PW1 had stated in his evidence that the mother had not seen the appellant handing over the phone to PW1; he reiterated that PW1 had said that the phone was given to him long before the date of the offence was committed; that the phone in court was not the one that the appellant gave PW1;

11. There was therefore no direct evidence or indirect evidence to connect appellant to the offence; the trial court ought to have considered the defence and realized that it was not safe to convict the appellant as the evidence tendered by prosecution raised serious doubts as regards the standard of evidence;

12. Even though the prosecution calls the number of witnesses it deems fit to prove its case, it was important for the father of PW1 to have been called to testify as his evidence was crucial as he had handled the phone;

13. The appeal had merit and counsel urged the court to overturn the judgment; and quash the conviction and the appellant be set at liberty.

RESPONDENT’S SUBMISSIONS

14. In response counsel submitted that the phone (‘MFI.1’) was found in possession of PW1 who was a brother of the appellant; PW1 in his evidence confirmed that the appellant was the one who had given it to him; at no point in time did the appellant dispute that the phone in court was not the one he had given out to his brother (PW1); the appellant did not state where he had obtained the phone from;

15. Counsel submitted that the phone in PW1’s possession was the one that had been stolen from PW3 who availed receipts and was able to identify it as the one her husband had bought for her; PW3 never testified to having sold the phone to anyone;

16. The appellant never denied giving the brother the phone and his explanation on how he got the phone did not tally; no one led the police to PW1; they recovered the phone through tracking it; PW1’s evidence was not disputed and makes the appellant the first one in possession of the stolen phone; the only presumption to be made is that the appellant robbed PW3; there was no doubt raised in the prosecutions’ case;

17. Counsel urged this court to dismiss the appeal as it lacked merit; and that the conviction and sentence be upheld;

REJOINDER

18. The law does not require the evidence of the tracking but it requires the prosecution to prove its case beyond reasonable doubt; the legal requirement is for that evidence to be brought to court for the trial court to analyze; failure to tender such evidence is fatal to the case;

19. There is contradiction of the Charge Sheet and the evidence on record; the date on the particulars of the charge reads that the offence took place on 19/05/2013; the evidence on record is that the appellant gave PW1 the phone on the 15/05/2013; these dates cannot be the same and the contradiction was not reconciled by the trial court;

ISSUES FOR DETERMINATION

20. After hearing the rival submissions made by the respective counsel, this court has framed the following issues for determination;

(i) Whether the offence of robbery with violence was proved to the desired threshold;

(ii) Whether the trial court misapplied the doctrine of recent possession;

(iii) Whether the trial court disregarded the appellants statement of defence without giving good reasons;

ANALYSIS

21. This being the first appellate court it is incumbent upon this court to reconsider and re-evaluate the evidence and arrive at its own independent conclusion always keeping in mind that it did not have an opportunity to see nor hear the witnesses; reference is made to the case of Okeno vs Rep (1972) EA 32.

Whether the offence of robbery with violence was proved to the desired threshold; whether to substitute the charge;

22. The first issue that the trial court addressed in its judgment was whether the offence of robbery with violence was proved and it proceeded to outline the key ingredients of the offence, therein; it noted that from the evidence of PW2 and PW3 it was not clear whether the person who had robbed them was accompanied by others; but their evidence was that the robber was armed with a panga and a rungu and had beaten up PW2 until he was unconscious and PW3 was raped; hence violence was occasioned in the course of the robbery;

23. The trial court then made a finding that ‘the above had been proved’; and this court finds no reason to interfere with the trial courts finding as it is satisfied that two of the key ingredients of the offence had indeed been proved by the prosecution; which were that the robber(s) was armed with dangerous weapons namely a panga and a rungu which were used to beat up PW2; and that there was evidence of violence before and after the robbery;

24. This ground of appeal is found lacking in merit and is hereby disallowed;

Whether the trial court misapplied the doctrine of recent possession;

25. An identification parade was conducted but none of the two prosecution witnesses were able to pick out the appellant; in the absence of direct testimony on identification the trial court proceeded to invoke the doctrine of recent possession based on the recovery of the stolen mobile phone which had been tracked by PC Ferdinand Kazungu (PW5) and found in the possession of PW1 a younger brother of the appellant; who then implicated his brother the appellant as the one who had given him the phone;

26. The appellant’s contention was that the doctrine was not available and or applicable;

27. The doctrine of recent possession is applied when the prosecution’s case is based on circumstantial evidence; and in this instance its case was indeed solely based on circumstantial evidence; secondly before the court can invoke the doctrine it must be satisfied that the appellant was found in actual or constructive possession; however, this court notes that the evidence of PW5 does not indicate that the appellant was found in actual possession of the stolen mobile phone; nor was there any evidence produced in the form of log data to demonstrate that the appellant used the phone before, during or after the robbery so as to link him to the offence;

28. The evidence of the Investigating Office indicated how he tracked the phone; no SIM card or log data from the service provider was produced by the prosecution in support of proof of the usage of the cell phone by either the appellant, the father and or PW1; there is no evidence at all on record to show that there was any cell phone line that had been used by the appellant and that it belonged to him; it was incumbent on the prosecution to furnish such evidence linking the appellant to the recovered phone;

29. This court reiterates that the doctrine of recent possession can only be applied where the accused (in this instance the appellant) is found in physical possession of the stolen item; or it is shown how the appellant had constructive possession and that he used it at some point and passed it on to someone else;

30. At the hearing of this instant appeal this court also noted that respondent referred to the phone recovered by PW5 as ‘MFI.1’; upon perusal of the court record this court notes that it reflects that the phone was indeed tendered as evidence and it was marked for identification; but the record does not reflect that it moved to the next stage which is that the trial court admitted the phone as an exhibit and marked it as an exhibit thus making it part of the judicial record;

31. In the case Des Raj Sharma vs Regina (1953) EACA 310 it was held as follows;

“…there is a distinction between exhibits and articles marked for identification; the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence.”

32. The Court of Appeal in the case Kenneth Nyaga Mwige vs Austin Kiguta & 2 Others [2015]eKLR held that;

“Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification; Until a document marked for identification is formally produced, it is of very little, if any, evidential value.”

33. Guided by the above authorities this court is of the view that failure to have the recovered phone marked as an exhibit was fatal to the prosecution’s case; as it stands it does not form part of the record; this then means that the phone was not properly before the trial court; the record reflects that the trial court evaluated the evidence adduced on ‘MFI.I’ and came to the conclusion that ‘there was no reasonable explanation advanced by the appellant as to how he came to be in possession of the said phone;’

34. This court is satisfied that the phone was not part of the evidence that was properly before the trial court and that it erred in evaluating the evidence adduced on ‘MFI.1’ which had not been formally admitted as an exhibit;

35. The above notwithstanding this court is satisfied that the trial court erred in invoking the doctrine of recent possession; as the prosecution failed to produce any documentary evidence on how the appellant was found in possession of the stolen phone; or on the usage of the phone by the appellant at some point and had then passed it on to someone else;

36. This ground of appeal is found to have merit and is hereby allowed; and the conviction is therefore found to be unsafe.

Whether the trial court disregarded the appellants statement of defence without giving good reasons;

37. Having found the conviction to be unsafe this court will not belabor itself in addressing this issue.

FINDINGS

38. For the forgoing reasons this court makes the following findings;

(i) The prosecution is found to have proved the offence of robbery with violence to the desired threshold;

(ii) The prosecution however failed to connect the appellant with the said offence by failure to meet the requirements for the application of the doctrine of recent possession.

(iii) The trial court is therefore found to have misapplied the doctrine of recent possession; the conviction is found to be unsafe;

DETERMINATION

39. The appeal is found to be meritorious and it is hereby allowed;

40. The conviction is hereby quashed and the sentence is hereby set aside; the appellant be set at liberty forthwith unless otherwise lawfully held.

Orders accordingly.

Dated, Signed and Delivered at Nyeri this 4th day of July, 2019.

HON.A. MSHILA

JUDGE