[2017] KEHC 2482 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 17 OF 2016

MUTINDA MUVEVI KAVENGO………....………………….....APPELLANT

VERSUS

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

(Being an Appeal from the original conviction and sentence in Makueni Principal Magistrates Court Criminal Case No. 436 of 2014 delivered by Hon. R. Koech (SRM) on 30th March, 2016)

JUDGEMENT

1. The appellant, Mutinda Muvevi Kavengo was charged with three counts. The first was robbery with violence contrary to section 296 (2) of the Penal Code. The particulars were that the appellant on 2nd June, 2014 at Watuka village, Kako location Mbooni East District within Makueni County, jointly with others not before court being armed with dangerous/offensive weapons namely pangas and rungus robbed Daniel Muatha Kikondi of a brief case containing assorted clothes, passports, 2 electric spotlight torches, 3 mobile phones, a military binoculars all valued at KShs. 50,000. 00 and immediately after the time of such robbery used actual to one Daniel Muatha Kikondi.

2. The second and third count was assault causing actual bodily harm contrary to section 251 of the Penal Code. Particulars respectively being that the appellant on 2nd June, 2014 at Kako location Mbooni East District within Makueni County, jointly with others not before court unlawfully assaulted Nzioki Muinde thereby occasioning him actual bodily harm. The Appellant further on 2nd June, 2014 at Kako location Mbooni East District within Makueni County jointly with others not before court unlawfully assaulted Mutiso Kwindu thereby occasioning him actual bodily harm.

3. The appellant pleaded not guilty to the charges and was put to trial. Daniel Muathe Mutinda (PW1) recounted that the robbery took place at about 8:00 pm on 2nd June, 2014. He was at home with his wife, granddaughter who goes by the name Judy and two of his employees. The employees were said to be in the outside kitchen while he and his family were in the house. Judy was preparing dinner in the inside kitchen. PW1’s heard dogs barking and called on Judy to check what made them bark. Just as she opened the door to check, the robbers pushed back the door sending Judy to the floor. Two of the robbers were armed with a panga and one with a club. PW1, his wife and Judy were ordered to lie on the floor and were told not to gaze at the robbers. The robbers asked for an iron box that was used by armed forces. Judy brought it but the robbers denied that it was not the one they meant. Judy was ordered to take them to PW1’s bedroom where they took over half an hour. Judy joined PW1 and his wife on the floor after showing the robbers the bedroom. They remained on the floor until the robbers went away. After the ordeal, PW1’s wife checked on the two employees who she found locked inside the outside kitchen from outside. They were said to have been hit on the legs. The robbers made away with three phones, two of PW1’s wife and one from Judy, PW1’s rain coat, Kshs. 300/-, wrist watch, a re-chargeable lamp and binoculars. The binoculars and re chargeable lamp were later recovered.

4. It emerged from Judy Ngina Mwathe (PW2’s) testimony that the robbers were armed with pangas and a rungu. One of the robbers smashed the bulb and told her not to look at him. One of the robbers went towards her grandmother who tried to scream. PW1 stood up to question what the problem was but he was ordered to lie down. When one asked for an iron box, she offered to show them where it was. She was however told that the one she showed them was not the one they wanted. A panga was placed on her back and asked to show the robbers her grandfather’s bedroom which she did. She switched on the light and they gave her things to pack for them in a bag. She was given a binoculars and a rechargeable lamp. A lesso was spread on the floor and she was asked to tie the bag in the lesso. The robbers had caps which they pulled down their faces so as not to be identified. PW2 later realized that phones had been stolen too. Using a neighbour’s phone, PW2 called her mother who in turn informed the police. the police arrived at around 11:00 pm and a search was mounted. At around 2:00 a.m a suspect had been arrested and a binoculars and re chargeable lamp recovered.

5. Regina Ntinda Mwathe (PW3) testified that the robbers entered her house armed with pangas and torches. The solar lamp was smashed as they entered. She confirmed that her two phones and PW2’s phone, PW1’s coat, passports, marriage certificates and old coins in a basket were taken by the robbers. That the robbers asked PW2 to take them to the bedroom where they stayed for sometime. When the robbers left, PW3 opened for Mutiso who told her that he had been beaten together with another servant. PW3 screamed and members of the public came to assist them. The robbers were pursued by youth who followed their foot prints. They were later called by the chief from Kilala informing them that their lost items had been recovered. The robbers were said to have been tracked to a house belonging to Catholic Brothers in Kaumoni where the stolen items were recovered.

6. Peter Mutiso Kyale (PW4) stated that he was on the material day in the kitchen when he was hit with a big walking stick on the knees and buttocks. He was with one Nzioki who was also attacked. They were ordered to lie down and they did so until at around 9:00 pm when PW3 opened for them the door since they had been locked in the kitchen from outside.

7. Nzioki Muinde (PW5) stated that he was with PW4 in the kitchen when somebody entered the kitchen. The said person was armed with a club with which he hit PW4 who fell. When PW5 turned, he was also hit on the shoulder, back and right leg. The attacker ordered them to lie down. They were beaten up and locked in the kitchen from outside. PW3 later came to open for them.

8. Ndolo Kalila (PW6) was called by Mrs. Musyoki who is a neighbour to PW1 and PW2. He was informed of the robbery. He joined in the search for the robbers. Footprints were followed from Waituga to Kaumoni. They followed the footprints to a school in Kaumoni, they got into a class room which had a through door then to the kitchen which the search team of ten people surrounded. The appellant emerged from the kitchen. Upon inquiring where he had come from he stated that he was from PW1’s house where he had gone for an iron box. From the Appellant the team recovered shoes. The appellant led the team to a house at Kinongo where the re- chargeable lamp was recovered.

9. Peter Ndeti Kiindu (PW7) testified that he was alerted by Ndanu who informed him of the robbery. He went to PW1’s home where he joined the search team. They followed footprints which led them to the appellant who confirmed that he had been at PW1’s house. He led the team to a house where the re- chargeable lamp and binoculars were recovered.

10. Emmanuel Mweli Amisi’s (PW8) and Joseph Mutava Muangi’s (PW9) who were in the policing team indicated that they followed footsteps which led them to the appellant’s house. Where shoes that did not belong to the appellant were recovered. The appellant admitted to having been at PW1’s house and led them to a house where PW1’s rechargeable lamp and binoculars were recovered.

11. Corporal Edga Kibet (PW10) testified that upon getting information of the robbery, he, Corporal Peris, PC Benson Gondi and PC Kimani Thiongo met the community policing who arrested the appellant at KaumoniMaselele village. He stated that the lamp and binoculars recovered was identified by PW1.

12. Dr. Emmanuel Loiposha (PW11) confirmed that PW4 and 5 sustained injuries. He produced p3 forms in respect of PW4 and 5 as P. Exhibit 4 and 5 respectively.

13. The appellant was put to his defence. He testified that he was on the material day at about 3:00 am at his house when he heard footsteps. His wife advised him to go out and check since they had goats outside. He told his wife that those were passersby since their house was next to the road. Shortly thereafter, he heard a knock. Upon opening the people outside pushed the door open and beat him up. He told them that he was with casuals who had gone to their homes. They demanded that he shows them the casuals home which he did. That he led them to the houses of Gerald Nzeki and Joseph where a phone was recovered. The three of them were arrested but the Gerald and Joseph were given the phone and released while he was faced with the charges before court.

14. The trial court went ahead and convicted the appellant of the 1st count and acquitted him on the two counts of assault. Aggrieved by the conviction and sentence, the appellant filed this appeal on grounds which can be summarized as follows:

a) That the trial court based the conviction on circumstantial evidence which was not corroborated.

b) That the evidence was riddled with doubts and contradictions.

c) That investigations were not conducted.

15. In considering this appeal, I am minded of this court’s duty as a first appellate court to re-evaluate and analyze the evidence on record afresh and arrive at my own independent conclusion.

16. It was the appellant’s submission that identification was non-existent and the evidence relied upon was purely circumstantial. He contended that although it was alleged that footprints were traced to the appellant’s home which was 30 Kilometers away, the same sounded improbable for the reason that it was not normal for the alleged search team to cover that distance scrutinizing footprints at night, that the number of people in the team were less than ten, the team had to retrace their footsteps whenever the lost track and that none of them knew for sure where they were going. That the witnesses gave contradictory versions of events as to what was recovered. In support of his argument, the appellant cited among others Josiah AfunaAngulu v. Republic CA Cr. Appeal No. 277 of 2006. That he gave a defence of alibi and it was upon the prosecution to disprove the same. On that he cited Victor Mwendwa Mulinge v. Republic (2014) eKLR and Adedeji v. the State (1971) ALL N.L.R. 75.

17. The respondent on the other hand submitted that the ingredients of the offence of robbery with violence were clearly established in this case. That the court applied the doctrine of recent possession in finding the appellant as having been among the armed robbers. That during the defence, the appellant gave unsworn evidence which did not shake the prosecution evidence. That the appellant merely denied the commission of the offence.

18. Under Section 119 of the Evidence Act, Cap 80, Laws Kenya there is a rebuttable presumption that the appellant was either the robber or a guilty receiver, unless he offers a reasonable explanation as to his possession of suspected stolen items. This s so because of the principle of presumption of likely facts.

19. I am fortified by the Court of Appeal decision in Francis KariukiThuku& 2 others v. Republic [2010] eKLRwhere it was held:

“Concerning the application of the doctrine of recent possession to the facts in the case, we are of the view that the appellants did not offer any reasonable explanation of their possession and therefore the reliance by the superior court on the holdings in the cases of R. V. Loughin 35 Cr. Appl. 269 by the Lord Chief Justice of England and this Court’s own decision of Samuel Munene Matu V. R. Criminal Appeal No. 108 of 2003 at Nyeri demonstrates that the doctrine was properly applied. The recovery of the items in the case before us was within7 dayswhereas in the MATU case (supra) a period of20 dayswas held to be recent. We accordingly uphold the superior court’s view of the law on the point. In this regard we would re- echo the decision of this Court in the case of Hassan -vs- Republic [2005] 2 KLR 11 where as regards recently stolen goods it delivered itself thus:-

“Where an accused person is found in possession of recently stolen property in the absence of any reasonable explanation to account for this possession a presumption of fact arises that he is either the thief or a receiver.”

20. The appellant herein failed to offer an explanation as to how he got the shoes he had which shoes were not his. It is worth noting that the appellant also led the search team to the place where PW1’s items were found without offering an explanation on how he knew of their whereabouts. It is further noted that the appellant was found only a few hours after the robbery. The only inference that can be drawn without any doubt is that he was among the robbers. See George Otieno Dida & Another v. Republic [2011] eKLRwhere the appellant had been found in possession of the stolen goods less than five hours after the robbery and the Court of Appeal held that:

“There are concurrent findings of fact by both the trial and first appellate courts that indeed there were robberies, several items including the ones produced in court were stolen in the course of those robberies, and the appellants were found in possession of the same only five hours or less after the robberies...In our view, the evidence against the appellants though circumstantial, raised a rebuttable presumption of fact under section 119 of the Evidence Act, Cap 80 Laws of Kenya, that they were either the thieves or guilty receivers. The evidence excludes the latter because they were found in possession only less than 5 hours after the theft and it is not reasonably possible that the goods would have within that short time have changed hands.”

The Appellant was arrested and found in possession of complainant’s stolen shoes a few hours after the robbery and he also led the search team to the recovery of a stolen rechargeable lamp which were positively identified by the complainant. There is therefore no doubt that he was among the robbers.

The Appellant’s case is on all fours with the above case. In the circumstances, I find that the prosecution proved its case beyond reasonable doubt. This appeal therefore fails and is therefore dismissed. The conviction and sentence of the trial court is upheld.

It is so ordered.

Dated, Signed and Delivered at Machakos this 3rdday of November, 2017.

D.K. KEMEI

JUDGE

In the presence of:-

Mutinda Kavevi Kavengo – Appellant

Machogu for Respondent

C/A: Mungai