[2022] KEHC 13432 (KLR)

Ndegwa v Republic (Criminal Appeal E019 of 2022) [2022] KEHC 13432 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13432 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E019 of 2022

RPV Wendoh, J

October 6, 2022

Between

Nick Kimathi Ndegwa

Appellant

and

Republic

Respondent

Judgment

1. By the amended petition of appeal dated April 19, 2022, filed by Kasamani Advocate, counsel for the appellant, Nick Kimathi Ndegwa, the appellant who is dissatisfied by the judgment of Migori SPM, delivered on March 7, 2022 prays that the conviction be quashed and sentence be set aside.The appeal is premised on the following grounds:-1. That the trial court erred by not making and setting out its decision on counts II and III of the charge sheet which rendered it defective;2. That the court erred by relying on evidence that was full of contradictions as regards the ammunition;3. That the court erred by admitting evidence that had no nexus to the appellant and shifted the burden of proof from the prosecution;4. That the court erred by ignoring the appellants submissions and authorities;5. That the court erred by finding that the charge had been proved;6. That the court erred by imposing an irregular, punitive and harsh sentence.The appellant was convicted of those charges.

2. Count II: Being in possession of ammunition contrary to section 4(1)(2)(a) as read with section 4(3) of the Firearms Act

3. The particulars of the charge are that on January 21, 2021 at Nyatike Sub County, within Migori County within AP Lines, was found in possession of (1) 14 rounds of 7. 62MMspecial ammunition (2) one 7. 62 MM ordinary ammunition and (3) 2 blank2. 62MM Ammunition without firearm certificate.

4. Count III: trafficking in narcotic drugs by storing contrary to section 4 (a) of The Narcotic and Psychotropic Substances Control Act No 4 of 1994.

5. The particulars of the charge are that on January 21, 2021 at AP Lines, was found trafficking by storage, 80 rolls of cannabis sativa which had a street value of Kshs 8,000/=Upon conviction, the appellant was sentenced as follows:-Count II: Seven (7) years imprisonmentCount III: Two years imprisonmentThe sentences were ordered to run concurrently

6. This being a first appeal, it behoves this court to re-examine all the evidence tendered before the trial court, analyse it and arrive at its own findings but bearing in mind that this court neither saw nor heard the witnesses testify. I am guided by the decision of Okeno v Republic (1972)EA 32.

7. The prosecution called a total of ten (10) witnesses in support of their case. PW1 Chief Inspector of Police Sammy Njiru, the OCS of Macalder Police Station recalled having gone off duty on January 14, 2021 leaving the Deputy, Moses Samoei in charge with the key to the main door of the office. On 21/01/2021 the deputy (PW4) called to inform him that somebody had opened his office, broken the wooden box which contained inter alia cash bail receipts and money. He askedPW4 to report to theDCIO for investigations to commence. On January 25, 2021,PW4 informed PW1 that the missing cash bail box had been seen near the station fence and he went and recovered it. It contained bail bond copies and Kshs 1,500/= butKshs 172,400/= had been stolen. He told the court that the office had a padlock, he kept one key, another was kept by the cleaner Florence Anyango (PW2) and another by the appellant.

8. PW2 Florence Anyango recalled that on January 21, 2021, she reported to work at 6:17 a.m, cleaned the report office when two officers reported. She noted that the table cloth was folded, a slightly bent a knife was on the chair; that the appellant entered to the office and left. PW2 knew that the appellant used to work in the OCS’s office.

9. PW3 PC Innocent Muunda was on duty with PC Franklin Ochieng at report office on January 21, 2021 and found PW2 cleaning; that the appellant came there about 6:20p.m and booked himself on leave and left; that when PW4 reported on duty, he informed them that the table door had been broken and the exhibit box was stolen and cash bail safe book missing. He later saw the scenes of crime come to photograph the scene.

10. PW4, the deputy OCS Samoei, reported to the office, opened the main door, and later noted the exhibit box was broken into. He reported to the OCS who told him to check for the cash bail box which he found missing. He reported the incident and investigations commenced. He informed the investigating officer about those who had the key to the main door who are himself, the cleaner,PW2 and the secretary, the appellant; that the appellant had proceeded on annual leave and was called back. He had told the appellant to hand over the keys to Benjamin Okumu who when asked, denied that the appellant left the keys. Later, PW4 accompanied the investigating officer to the appellants house and one Hillary Kiptoo had keys to the appellant’s house; that the officers opened the door and conducted a search and came out of the house with a jungle bag which had rolls of narcotic leaves and a small bag which had bullets which were marked as EX8 – 15. An inventory was prepared PW6 PC Hillary Kiptoo recalled that on January 20, 2021 while on duty at 7:00a.m, the appellant gave him the key to his house and he told PW6 to look after his house as he was proceeding on leave. About 8:00 a.m. he was called to go to the house where he found PW4 and other officers who asked for keys to the appellants house which he handed over and left. He was not present when the appellant’s house was opened.

11. PC Kevin K Mugo (PW5) was going to his house on January 25, 2021 when he spotted a blue metallic box. He called the DCIO and the box was retrieved from the bush.

12. Alex Mudinde Mwandemo a superintendent of police (PW7) attached to ballistic laboratory, received some exhibits at the laboratory on May 25, 2021, that is ammunitions A – D. He found that A1 to 14, 7. 62 x 36 MM were for use in an AK 47 and two were test fired ; B1 and 2 were calibre 7. 62 x 51 blanks that were test fired; C1 was calibre 7. 62 x57 used in mode 1895 rifles. He opined that A1 – 14, B1, 2 and D1 were all capable of being fired and were ammunition; that and C1 were not lethal but are used for training.

13. Richard Kimutai Langat (PW8) is the Government Analyst. He examined the substance submitted to him by PC Abdi of Nyatike DCI. After a chemical and physical analysis, he came to the conclusion that it was cannabis.

14. PW9PC Abdi Sata ofDCI Nyatike recalled January 21, 2021 when he was called to Nyatike Police Station with the scenes of crime officer. He was instructed to investigate the case.

15. After dealing with the office, they proceeded to the appellants house which was secured by a padlock, by CIP, PW4; that the appellants house was opened by PC Kiptoo (PW6) and he conducted a search therein and recovered a sword in a black pipe, jungle bag with 80 rolls of cannabis and another bag which had ammunition. He recorded statements. On January 24, 2021, the appellant returned to the station and was informed of the recoveries and was arrested. On January 25, 2021, a metal box was spotted in a bush near the police station and was found to be the stolen cash bail box and had 5,500/=. He kept them as exhibits and he prepared the exhibit memo and took exhibits for analysis.

16. When called upon to defend himself the appellant remembered that January 20, 2021 he was with PC Kiptoo at Masara till 6: 30p.m and went back to Nyatike. He slept and next morning, about 6:00a.m, he went to the office to book off duty which he did. He went back to his house and left for Nairobi en route to Meru. When he arrived home, he found many calls from the OCS, Deputy OCS andDCIONyatike, and was informed his leave had neem cancelled. He left Meru on January 23, 2021 and on reaching Nyatike, was informed of what had occurred and was arrested and charged. He said that he had left his keys with PC Kiptoo (PW6) and he denied that the items were recovered from his house. It was further submitted in respect of count II that PW4 who should have been investigated for breaking into the OCS office should not have led or taken charge of the search at the appellant’s house as there was conflict of interests as he was a probable suspect.

17. Counsel asked why it is only the appellant who is a person of interest, even when it is PW6 who opened the appellant’s house; that reliance on the evidence of PW4 was an error, being a person of interest; that the prosecution failed to call important witnesses like CIP Kibor and others who carried out the search. Reliance was made on the case of Gordon Omach Ochieng v Republic (Kajiado) HCCRA 42 of 2019; As for the possession of firearms, counsel urged that there was no conclusive evidence to the effect that it is the appellant who stored the ammunition in his house because he was away from 21st to 24th. For that submission counsel relied on the decision of John Maina Kenunya v Republic Criminal Appeal 412 of 2017.

18. On count III it was submitted that their was no nexus between the drugs and the appellant and that it was questionable that the appellant would leave his key with another officer yet he knew that there were drugs and ammunition in the said house.

19. On sentence counsel submitted that the sentence on count III was harsh and excessive.

20. Mr Omooria filed his submissions in which he conceded the appeal The reason why he conceded the appeal was that PC Hillary Kiptoo with whom the appellant left the key to his house was never called as a witness. That is a very wrong submission because PC Hillary Kiptoo testified as PW6 and explained what happened that day. Clearly, the counsel did not take time to read the proceedings and understand the case. The concession notwithstanding, it is the duty of this court to re-evaluate all the evidence that was tendered before the trial court.

21. The appellant was acquitted of the first charge of office breaking and committing a felony contrary to section 306 as of thePenal Code. The trial court found as follows:“….. it is clear that as at the time of the incident, there were three people who had keys to the office of the OCS. They were the accused,PW2 and PW4. However, during the investigations, there was no search conducted in the house of PW2 and PW4. My humble opinion is that PW2 and PW4 should have been treated as suspects and they should have been investigated. I have noted that the accused person did not hand over the keys to the office when he was proceeding on leave. However, that created suspicion against him and that suspicion needed to be supported with evidence.”

22. The above extract explains why the appellant was exonerated and acquitted of the first charge.

23. It is the suspicion levelled against the appellant that is the genesis of the two other charges against the appellant because after the office was found broken into.PW4 together with DCI officers proceeded to the appellant’s house and later allegedly searched it.

24. From the testimonies of PW7, the forensic ballistic expert, I have no doubt that the exhibits which he examined were ammunition as per his findings.

25. I am also satisfied that the exhibits taken to PW8 for analysis was indeed cannabis sativa. The key question is whether the said exhibits were found in the appellants house? The appellant contends that some key witnesses likeCIP Samoei Kibor were not called as witnesses. PW9, the investigating officer testified that he accompanied the accused, CIP Kibor to the scene of crime at the police station and later to the appellant’s house where the ammunition and cannabis were recovered. The principles to consider in determining the calling issue of crucial witnesses was dealt with in the celebrated case of Bukenya & Others v Uganda (1972) EA 549 where Lutta Ag Vice President held:-“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”

26. IPSamuel Kibor who was not called as witness is the one who went to the scene together with PW9. PW9 testified as to what they did and what they recovered. Section 143 of the Evidence Act provides:-“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

27. It is therefore trite that a fact can be proved by the evidence of a single witness except where a statute specifically provides otherwise.

28. In Bukenya’s case the court also observed that it is unnecessary to call a superfluity of witnesses. In Keter v Republic (2007)1EA 135, the Court of Appeal held inter alia:-“The prosecution is not obligated to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”

29. Having calledPW9 to testify on what he did with the said inspector Kibor, it was unnecessary to call him or those others who were with him.

30. No doubt by the time PW4 went with DCI officers to the appellant’s house, the appellant had left because he was on leave. According toPW4, CIP Samoei, the then DeputyOCS told the that court that after the matter was reported to DCIO, they went to search the appellant’s house on the afternoon of the same date and he did not enter the house after PW6 opened it .

31. PW6 on the other hand told the court that the appellant gave him the key to his house at 7:00a.m and he left and that an hour later about 8: 00a.m., he was called back from the market to go back to the police station wherePW4 asked for the keys to the appellant’s house. According toPW6, PW4 immediately added a padlock to the door. PW6 was not present when the search of the appellants house was conducted. PW4 having had the appellant’s key for about an hour, he may have had access to the said house. The question is why the DCI personnel did not search the appellants house in PW6’s presence?.

32. PW4 placed a padlock on the appellant’s door in the morning, from about 8:90a.m till afternoon when a search was conducted. The appellant’s has denied that he left any ammunition or drugs in his house and therefore someone else either placed the items in his house or they were not found there.

33. The trial court having found that PW4 should have been investigated regarding the alleged breakage into the OCS office, the investigating officer should have also investigated the appellant’s house with caution and not totally relied on the testimony ofPW4. This is because the court finds that there was also a gaps between the timePW6 gave the key to PW4 till the afternoon when PW4 opened the appellant’s house in company ofDCI Officers. In my view, oncePW6 gave the keys to PW4, the house should have been searched immediately in the presence of PW4 who was then a special owner of the appellants’ house having been left in charge. These lapses in the prosecution evidence raise doubt s in my mind as to the recovery of the ammunition and cannabis in the appellants’ house. The appellant may be a prime suspect but the conduct of the matter byPW4 and investigators raises eyebrows. Doubt having been raised in the prosecution evidence, that doubt must be resolved in the appellant’s favour because it was the duty of the duty of the prosecution to prove their case beyond any reasonable doubt but not for the appellant to prove his innocence.

34. For the above reasons, I find that the conviction is unsafe. I hereby quash it, and set aside the sentence. The accused is set at liberty forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 6TH DAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama for the Respondent.Ms. Akoya holding brief Mr. Mukoya for appellantAppellant present.Nyauke Court Assistant