[2014] KEHC 5717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL APPEAL NO. 109 OF 2012

Appeal from the original conviction and sentence of the Acting Senior Resident Magistrate

(V.A.Otieno, Ag SRM) at Mwingi in Criminal Case Number 71 of 2012.

MUTINDA MUTHUI.......................................................1ST APPELLANT

PAUL MUOTI KITILI.....................................................2ND APPELLANT

VERSUS

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

JUDGEMENT

Background

Mutinda Muthui, 1st Appellant, and Paul Muoti Kitili, 2nd Appellant, were the first and second accused persons respectively in the lower court. They were charged with three counts of breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code. The particulars of each count read as follows:

On the night of 31st January and 1st February 2012 at unknown time at Mwingi Township, Mwingi Central Location within Mwingi Central District in Kitui County, jointly with others not before the court, broke and entered a building namely store of Josephine Musili and committed a felony namely theft therein and did steal assorted new clothes valued at Kshs 45,000/= the property of Josephine Musili.

The particulars of count two and three are similar to those in count one. The building in second count belonged to Mwikali Muli where an assortment of new clothes worth Kshs 30,000 the property of Mwikali Muli were stolen and the building in count three is a hotel belonging to Recho Kavuvi from where five sufurias, one kettle, two thermos flasks, 12 cups and one washing basin worth Kshs 13,000 the property of Recho Kavuvi were stolen.

The 1st Appellant faced an alternative charge of handling assorted new clothes and one washing basin otherwise than in the course of stealing contrary to section 322 (1) and (2) of the Penal Code on 1st February 2012 at Mwingi Township, Mwingi Central Location in Mwingi Central District Kitui County.

The 2nd Appellant faced an alternative charge of handling three dresses, one bed sheet, four skirts and two jean trousers otherwise than in the course of stealing contrary to section 322 (1) and (2) of the Penal Code on 1st February 2012 at Mwingi Township, Mwingi Central Location in Mwingi Central District Kitui County.

Five witnesses testified for the prosecution. The appellants testified without calling any witnesses. The trial court was convinced that the alternative charges were proved beyond reasonable doubt and convicted the appellants. Each was sentenced to serve seven years imprisonment.

Petition of appeal

The appellants are aggrieved and have preferred this appeal. The 1st Appellant had filed Criminal Appeal No. 109 of 2012 while the 2nd Appellant had filed Criminal Appeal No. 110 of 2012. Both were consolidated on 29th October 2013 into Criminal Appeal No. 109 of 2012.

The appellant have prepared nine similar grounds of appeal as follows:

i. The charge sheet is defective.

ii. The value of the alleged stolen property was not ascertained.

iii. Evidence surrounding the recovery of the items is contradictory.

iv. The mode of arrest was not established.

v. The owner of the house in which the items were recovered was not established.

vi. The trial magistrate shifted the burden of proof to the appellant.

vii. The sentence is harsh and excessive.

viii. The appellant’s mitigation was not considered.

ix. The language of the witnesses was not recorded.

1st Appellant’s Submissions

The 1st Appellant has submitted that the evidence does not support the charge because the items stated in evidence to have been stolen are different from those listed in the charge sheet and that this contravened section 134 and 214 of the Criminal Procedure Code. He further submitted that the prosecution failed to indicate the time the alleged offence was committed and that the value of the alleged stolen items was not ascertained.

1st Appellant further submitted that there was not prove that the house in which the recovery of the alleged items was made belonged to him as the landlord was not called to testify; that it is not clear whom among PW4 and PW5 arrested the 1st Appellant and that his mitigation was not considered.

2nd Appellant’s Submissions

The 2nd Appellant submitted that the charge sheet is defective because the value of the stolen items is not given and that the items mentioned in the charge differ from the alleged recovered items; that these contradictions create doubt in prosecution case; that the time the alleged offence was committed is also not indicated.

He submitted that the ownership of the house where the items are alleged to have been found was not proved; that there was no proof beyond reasonable doubt that the complainants were the owners of the alleged stolen items; that the mode of arrest was not proved; that the sentence is harsh and excessive and the language used by witnesses is not indicated.

Respondent’s Submissions

The Respondent has submitted that the charge is properly drawn and that the appellants have misinterpreted section 134 of the Criminal Procedure Code; that the charge contains all the necessary information and particulars of the charge as to inform the appellants what they were charged with and that if there are any defects, these are curable under section 382 of the Criminal Procedure Code.

Learned state counsel further submitted that the complainants identified the respective items and that the appellants did not account how they came into possession of those items; that the doctrine of recent possession applies in this

case; that the evidence clearly shows how each appellant was found with particular items and that evidence clearly identifies ownership of clothes. He submitted that the sentence is within the law and is not excessive and that the language of the court is indicated.

Counsel submitted on whether section 211 Criminal Procedure Code was complied with and stated that there is no format as to how compliance of this section should be captured. Counsel asked the court to dismiss the appeal.

Determination

This is a first appeal. My duty is to examine all the evidence adduced in the lower court and evaluate it afresh. The law allows this court to agree with the trial magistrate or to differ with him/her after making its own re-examination

and re-evaluation of all the evidence on record. Allowance is given that this court did not have the benefit of observing witnesses as they testified.

The evidence in support of prosecution case is that Josephine Kithumbi Musili, PW1, and Mwikali Felista, PW2, left their assorted clothes in the store of Mary Mawia, PW3, on 31st January 2012 for the night. PW3 used to keep the goods for the two witnesses at a fee. In the morning of 1st February 2012 PW3 found the store broken open and an assortment of items (mostly clothes and other related items) stolen. The matter was reported at Mwingi Police Station and following some leads the police arrested the 1st Appellant who led them to the 2nd Appellant. He too was arrested. Both were charged.

1st Appellant testified that he was away from Mwingi from 29th January 2012 to 1st February 2012 when he returned to Mwingi; that on 1st February 2012 he was arrested from the house of Eunice Mwangangi where he had gone to return a phone he was charging for her. He stated that the stolen items were found in that house.

The 2nd Appellant said he was arrested by PW4 as he went about his business; that the recovered stolen items were not recovered from him nor were they found with him; that those items recovered from him belonged to him and that it is only the evidence of the 1st Appellant that links him with this offence.

My determination of this appeal starts with the language of the court. The only time the language of the court is mentioned is on 2nd February 2012 when the plea was taken. Thereafter, the proceedings continued and witnesses testified. The language of communication is not recorded. Witnesses testified and the appellants cross examined and testified but it is not shown what language they were using. The appellant’s cross examination and defence are relevant to the charges and the evidence of the prosecution and this is an indication that they understood and followed the proceedings.

It is the duty of the judicial officer presiding over a case to ensure the court record is properly kept and all information properly captured. To keep poor court records portrays a judicial officer who is casual in the approach to her/his work and who is not on top of things.

I have evaluated the evidence however and found that the appellants were not prejudiced by failure by the trial court to record the language of the court. They followed the proceedings and gave their defences in a manner that indicates that they followed the proceedings.

On the issue of mitigation, I have noted that the appellants were not given a chance to mitigate. After conviction, the trial magistrate referred the two appellants for probation report. On 30th October 2012 the date sentencing was done, the trial magistrate went straight to sentence without asking the appellants to mitigate.

I have also noted that the record does not indicate that the requirements of section 211 Criminal Procedure Code was complied with. This can be overlooked by this court given that the appellants elected to give sworn statements and call witnesses. This indicates they were aware of their rights under section 211 CPC. However, I again fault the trial court for being casual in the manner he handled this matter.

Another indication of the casual manner this matter was handled is the record concerning PW3. She was stood down by the court on 15th May 2012 to allow the 1st Accused (1st Appellant) to read her statement. When hearing resumed on 13th June 2012 the court proceeded to call PW4 to testify. He testified and was cross examined. It took the prosecutor to remind the trial magistrate that PW3 was to be recalled for cross examination.

I further note that the appellants indicated that they would call witnesses but on 17th September 2012 after they finished giving their testimony there is no record about witnesses or whether they had closed their respective defences or not. The court proceeded to given a judgement date and also to order the release of the exhibits to the complainants even before judgement was delivered. The action of releasing the exhibits before determining the case shows a predetermined mind that the clothes belonged to the complainants. It was improper to order release of exhibits before judgement was delivered.

On defective charges I do not agree with the appellants. The charges as drawn give all the necessary information to inform them of what they were charged with and conform to section 134 of the Criminal Procedure Code. The value of the stolen items was given and normally this is an estimate. There is nothing wrong with this.

On the mode of arrest, contradictory evidence on recovery of the alleged stolen items and the shifting of the burden of proof to the appellants I wish to state that PW4 told the court that they followed foot prints to a seasonal river where they found empty sacks; that they received information that three people were seen carrying luggage suspected to be stolen. The person who gave this information is not disclosed. It is said that the person who gave them this information directed them to a house in which the 1st Appellant was found. He was searched and was found with clothes in an orange manila sack and white manila sack. The 1st Appellant is said to have directed the police to the 2nd Appellant in another house where some clothes were recovered from.

The appellants have raised the issue of the ownership of the house where the recovery was allegedly made. I have analyzed the evidence of PW4. He did not disclose the informer who directed them to the house. PW4 told the court that when they went to that house they searched the 1st Appellant and found some clothes in an orange sack and white sack. It is not clear whether these were found inside the house or on the 1st Appellant. I need not emphasize here that a sack is not something that can be found on the body of someone. PW4 does not come out clearly about where the sacks containing clothes were found. They cannot have been found on the body of the 1st Appellant. It is logical to conclude, in the absence of evidence to that effect, that the sacks were found in the house. This makes ownership of the house relevant to this case. The appellants have mentioned there was a woman in that house known as Eunice Mwangangi whom the 1st Appellant said he had taken a phone he had been charging to and that the clothes were found in that house. The prosecutor did not cross examine the 1st Appellant on this issue.

The 2nd Appellant also refers to a woman arrested together with the 1st Appellant who did not testify. The prosecution is under a duty to proof possession of the alleged recovered assorted clothes and since there is issue with ownership of the house where they were recovered, it was crucial for the prosecution case to call evidence from the landlord or the said Eunice Mwangangi.

Add this omission to the fact that the clothes allegedly stolen, those allegedly recovered and what PW1 and PW2 were identifying in court did not tally and it becomes clear that the prosecution case was not without some doubts. PW4 and PW5 are the officers who recovered the assortment of clothes. PW4 was sketchy about the exhibits. He said they recovered bed sheets, children’s clothes, jean trousers and skirts.

PW5 was more elaborate. He testified that they recovered from the 1st Appellant 19 skirts, 11 camisoles, 6 petticoats, 6 sweaters, 2 underpants, 35 T-shirts, 13 blouses, 1 shirt and 47 underpants. From the 2nd Appellant it is alleged that police recovered 1 skirt, 14 blouses, 3 children’s suits, 4 petticoats, 5 dresses, 3 bed sheets, 5 T-shirts, 52 underpants and 14 socks. These clothing items are not similar to the ones PW1 and PW2 identified. There are some differences as can be seen on page 15 and 17 of the Record of Appeal. Some items identified, like bikers, children’s dresses, baby shirts, handkerchiefs are not mentioned by PW4 and PW5 as having been recovered.

After analyzing this evidence, I agree with the appellants that evidence on recovery and possession of the recovered assorted clothes is contradictory. I also find it creating doubts as to the possession of the stolen items. The landlord or the mentioned Eunice Mwangangi were crucial witnesses for the prosecution on this issue. They did not testify and this casts some doubt on the prosecution case.

Having carefully considered the grounds of appeal and rival submissions and on my own analysis of the evidence and careful scrutiny of the lower court record, I come to a conclusion that the trial magistrate made blunders in this case as I have highlighted in this judgement. These coupled with the doubts the evidence leaves in my mind, I come to a conclusion that the prosecution did not prove the case in the lower court beyond reasonable doubt. The benefit of this doubt goes to the appellants. This appeal succeeds in respect of each appellant. The conviction stands quashed and the sentence in respect of each appellant is hereby set aside. The 1st Appellant and the 2nd Appellant are hereby set at liberty unless for any other lawful cause they are held in custody. I make orders accordingly.

Dated, signed and delivered this 24th February 2014.

S.N.MUTUKU

JUDGE