[2023] KEHC 26875 (KLR)

Omanje v Republic (Criminal Appeal E133 of 2022) [2023] KEHC 26875 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26875 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E133 of 2022

RPV Wendoh, J

December 11, 2023

Between

Erick Ouko Omanje

Appellant

and

Republic

Respondent

(From original conviction and sentence by Hon. J. M. Munguti – Chief Magistrate in Principal Magistrate’s Court Criminal Case No. 473 OF 2019 delivered on 9/12/2022)

Judgment

1. Erick Ouko Omanje was convicted by the Senior Principal Magistrate Migori on seven counts of stealing a motor vehicle contrary to Section 278 A of the Penal Code. He was also convicted on the 8th Count of stealing contrary to Section 275 of the Penal Code.

2. In the first seven counts, it was alleged that between the year 2013 and 2016 at Migori Township, Suna East Sub County, with others not before the court, stole the following motor vehicles 2. 8 Registration number GKA xxxK worth 1. 5 Million; Toyota 2. 8D registration number GKA xxxH worth 1 million; Toyota 2. 8 F registration number KAH xxxE worth 1. 5 million. Toyota 2. 8D registration number KAM xxxT worth Kshs. 1 million; Toyota 1Y Registration number KAA xxxP worth Kshs. 1 million; Land Rover TD1 xxx registration number KAN xxxP worth Kshs. 1 Million; Toyota Vigo registration number KAV xxxE worth Kshs. 1. 8 Million; and lastly stealing motor vehicle parts i.e. Engine, suspension system, wring system, five tyres of motor vehicle Suzuki Vitara registration number KAW xxx Z all worth Kshs. 730,000/=.

3. Upon conviction he was sentenced as follows: -Count 1 – 7, 2 years imprisonment on each count;Count 8: One year imprisonment;

4. The sentences were ordered to run consecutively meaning that he will serve a total of 15 years imprisonment.

5. The appellant is aggrieved by the trial court’s judgment and preferred this appeal relying on the following grounds: -1. That the prosecution evidence was full of contradictions;2. That the court shifted the burden of proof onto the appellant;3. That the charges were not proved to the required standard.

6. The appellant prays that the conviction be quashed, sentence set aside and he be set at liberty forthwith. The appellant filed submissions in support of the appeal. Likewise, the prosecution counsel Mr. Kaino filed submissions opposing the appeal.

7. This being a first appeal, this court is required to exhaustively re-examine all the evidence that was tendered before the trial court, analyse and evaluate it and arrive at its own determinations. This court must of course bear in mind that it neither saw nor heard the witnesses testify. The lower court was better placed to assess the demeanour of the witnesses. I am guided the decision of Okeno vs. Republic (1972) EA 32.

8. The prosecution called a total of six (6) witnesses while the appellant gave unsworn evidence in his defence.

9. Tobias Oluoch Nyakiamo PW1, an employee of Migori County Government, as the County Legal Metrology Officer, testified that on 3/12/2013 the Director of Supply Chain Management, appointed an Assets Disposal Committee to which he was appointed Chairman and one of their mandates was to consider list of obsolete / surplus/ unserviceable items. They developed a work plan to visit places where the items were located which included vehicles in different garages some of which contracts with the County had expired. They had a list of prequalified suppliers for 2015 – 2016, Financial years in which the appellant was one of them, He was called Eric Omanje Auto Garage and Spares. They visited the garage on 30/1/2019 gave reasons for the visit and requested to be shown vehicles in the appellants possession but he refused saying that they were the subject of a court case. He however , relented and agreed to show them the vehicles. They found five vehicles at the garage with parts completely vandalized with only shells of the bodies available. The number plates had been removed and were in the appellant’s office; that the vehicles were GKA xxxK, GKA xxxH, KAM xxxT, KAV xxx E and KAW xxxZ was partially vandalised. They took six photographs of the items – EXNO. 3; that three vehicles KAA xxx F, KAM xxxE and KAN xxxP were missing; that accused explained that the vandalised vehicles had been burnt and spares stolen and promised to produce a police abstract which he later gave them, dated 17/1/2017 OB 68/01/2017 (pex.4); that it had only five vehicles listed and three i.e. GKA xxxH, GKA xxxK and GKA xxxA belonged to Migori County; that GKA xxxA was missing but GKA xxxH and GKA xxxH were at the garage; that the exercise was halted for some time due to lack of funds and when it resumed in July 2019, they found only two vehicles GKA xxK and KAW xxxZ Suzuki Vitara available at the garage. As a result, the matter was reported to the County Secretary by the letter of 1/8/219 who in turn reported to CID to investigate.

10. PW1 recalled that he is the one who supervised the taking of one vehicle GKA xxx H to the appellant for repair of the fuel injection; that the appellant claimed that he had not been paid for his services although payments for GKA xxxK had been made to the Appellant vide PEXNO. 6; that it is the Supplies Department that was able to tell how the appellant got to repair, the County motor vehicles. He further stated that for Government vehicles to be taken for repair, there had to be a document.

11. PW2 Vitalis Gor Aoro is the Principal Administrator Transport Officer in charge of performance contracting at Migori County Government. In 2014, he was deployed to oversee all motor vehicles and made an inventory of all machinery and did stock taking; that the location of the motor vehicles were identified as scattered over ten (10) departments. They went to the garage where the Government vehicles had been taken, which totalled 115 small vehicles, 4 tippers and 7 big tractors; that in mid 2019, they went to the appellant’s garage where they found tractors, graders and small cars belonging to the County Government. He said that the appellant’s garage had been prequalified to offer services to the County Government. He was aware that the appellant had County motor vehicles at his garage by the time he left.

12. PW3 Peter Ochieng Ngeso, a driver working with Migori County Government at the Referral Hospital, was assigned GKA xxxK Toyota Double Cabin in 2015. It had a problem with fuel consumption and his boss, one Shikuku told him to deliver it to the appellant together with the keys. He was not issued with any document, upon delivery of the vehicle to the appellant. He was transferred to Rongo, then back to Migori in 2018 when he was issued with an ambulance. He denied ever collecting GKA xxxK from the appellant’s garage and has never seen the vehicle again.

13. PW4 Elijah Ochieng Odhiambo, County Executive Committee Member of Migori County Government in charge of Lands Housing Physical Planning and Urban Development was the Acting County Secretary of the County. In August 2019, a Committee appointed by the Director of Supply Management did an assessment of all County properties including motor vehicles and found eight vehicles missing. PW4 was a member of the Committee and one of the people who visited the appellant’s garage in January, 2019. They found four of the vehicles were vandalised but four were missing. After a report was prepared by the committee, PW4 reported to the police for further investigations.

14. PW5 Engineer Wyclifee Otieno Aongo, a former transport manager in the Migori County Government from June 2016 to 2019 recalled that his role was to ensure maintenance of motor vehicles insurance, repairs, assigning duties to drivers etc. On taking over duties in 2016, he found that Omanje Auto Garage had been given a County Government vehicle for repair. (PW2 Vitalis Gor explained that for a vehicle to reach a garage for repairs, it had to go through procurement and Assets Disposal whereby the lowest responsive bidder would be awarded the contract).

15. The investigating officer (PW6) CPL Luke Rotich of DCIO Migori got information from the Acting Secretary of the County on the missing County Motor vehicles from the Financial years 2013 – 2019; that eight vehicles were missing from Eric Omanje’s garage where they had been taken for repairs. He recorded statements of Nyakiamo (PW1) who gave him 6 photographs of the status of the vehicles found at the appellant’s garage. PW6 visited the garage and the scenes of crime took photographs PEX 14. He was given LSO for GKA xxxK for which the appellant was paid on 28/6/2016; Log Book for KAA xxx, Toyota pick up and invoice for KAW xxx Z and invoice demanding Kshs. 381,870/= which the treasury paid PEX (a) – (e). He also received copies of records for vehicles where number plates were missing. He also received a report of the committee which contained photographs of the vehicles they had seen at the appellant’s garage. He recorded statements from the two drivers who drove GKA xxxK and KAA xxxA to the appellant’s garage.

16. The appellant gave unsworn evidence in his defence. He denied receiving eight (8) motor vehicles from Migori County Government and that if ever he received any, they would be accompanied by LPOs or LSO, invoices and delivery notes and that there are no such documents relating to the vehicles allegedly lost in his garage. His defence is that the person who instigated these proceedings was malicious intending to stop him from pursuing his claim against the County Government for KAW xxxV.

17. The appellant filed submissions relying on Article 227 of the Constitution of Kenya 2010, on Public Procurement of goods and Services under the Public Procurement Disposal Act and argued that there is no contract, agreement, invoice or delivery notes relating to the vehicles listed in Counts 1 to 7 to show that the vehicles were delivered to him; that there are no minutes of the Disposal Committee indicating that he ever told the committee that his garage was burnt down; that the inventory allegedly prepared by PW2 at his garage was never produced in evidence; that the police abstract referred to on allegation that accused’s garage was razed down was a forgery; that the appellant never signed the list of prequalified suppliers produced in court; that though PW1 stated that they found number plates of vehicles in his office, the vehicles should have been identified by the chassis numbers, number plates and PW1 did not indicate whether they counter checked to confirm that the number plates belonged to the vehicles; that the Log Books were not produced in evidence to verify that they indeed existed. The appellant also submitted that the court ignored the contradictions in the testimonies of PW6 with the other witnesses as regards the vehicles they found at his garage and in which LSO was GKA xxxK paid; that KAW xxxZ was still under repair and was towed away after his arrest. Lastly, that the sentence is harsh and excessive and that the court should have ordered the sentences to run concurrently.

18. The Respondent was allowed time to file their submissions but as I wrote this judgment, none have been filed.

19. There is no doubt and it is not denied that the appellant was one of the prequalified suppliers and service providers to the Migori County Government. The List of the prequalified suppliers and service providers was produced in evidence as PEXNO. 1 and the appellant falls under No. 16 in the name of Erick Omanje Auto Garage and Spares Box 798 Suna. To buttress that fact, he admitted to having been repairing one of the motor vehicles KAW xxx Z. The said vehicle was paid for vide voucher produced as PEXNO. 9 in the appellant’s name. Although the appellant claimed to be repairing the said vehicle, the photographs produced of the said vehicle shows a mere shell. The LSO was made on 28/6/2018 and as of 2019 when the committee visited the garage, nothing had been done to the said vehicle. The appellant has not explained what happened to the parts of the vehicle KAW xxx Z.

20. The key question is whether the appellant stole the vehicles as alleged. I do agree with the appellant, and as admitted by PW4 that for a motor vehicle to reach a garage for repairs, it had to go through the procedure under the Public Procurement and Assets Disposal Act. So far, the court has not been shown whether the said due process was followed. But even if the process was not followed, because what is on trial is not the due process under the Act, the issue is whether those charged with the process, which they did not follow, the vehicles were delivered to the appellant’s garage for repairs and if so, what has happened to them. It is immaterial that due process was followed in procuring the appellants’ services. The importance is whether Government property was lost through dubious and irregular means through which the vehicles got to be taken for repairs to the appellants garage which may itself be part of a scheme to steal the vehicles from the County Government of Migori.

21. PW3, told the court that on instructions of his boss, one Shikuku, he drove motor vehicle GKA xxxK Toyota Double Cabin to the appellants’ garage with a problem of fuel consumption in 2015. He never collected the vehicle from the said garage. A Local Service Order (L.S.O) for the said vehicle was issued (PEX6). It is addressed to the appellant’s garage. Since there is no evidence of how KAW xxxZ was taken to the appellant’s garage which the appellant admits he was repairing, I believe that it is the way PW5 delivered the vehicle to the appellant’s garage without following due process. Photographs were taken of the vehicle by the committee led by PW1 PEX14. The Toyota Double cabin photographed in the appellants’ garage belonged to Ministry of Health and bears their Logo. PW3 confirmed that the vehicle was from the Ministry of Health. The vehicle had been seen at the garage, as per PW1 and PW4’s testimonies. On the second visit, in July 2019 the vehicle was not found. It is not denied that this was the appellant’s garage nor did he dispute the fact that PW1 and the committee took photographs.

22. PW1 told the court that he personally supervised the taking of the motor vehicles GKA xxxH to the appellants’ garage for repairs of the fuel injection. It was driven by one David Alolo whom PW6 said recorded a statement to that effect but had died before testifying. The investigating officer got records of the said vehicle from NTSA confirming that it belonged to the County Government. The appellant casually dismissed the prosecution witness testimonies and never gave a plausible explanation as to where this vehicle that was left with him for repairs went to. I do not believe that the witnesses just woke up and decided to pick upon his garage as the place they took the vehicle for repairs. This court is satisfied that the said vehicle GKA xxxK and GKA xxx H were delivered to the appellant for repairs but were found to be a shell in 2019. No plausible explanation has been offered as to what happened to the vehicles and where the parts went to while in the appellant’s possession.

23. As regards the other vehicles allegedly stolen by the appellant, apart from the complainant listing them as missing, exhibiting their inspection reports and alleging that they were found in the appellant’s garage, there is not sufficient evidence to support the said assertion. Since PW1 said they found number plates, in the appellant’s office it would have been prudent for them to take photographs of them or take them in their possession to link them to the alleged stolen vehicles to prove that the vehicles were indeed at the appellant’s garage and had now gone missing. That was not done.

24. PW1 produced a police abstract allegedly given to them by the appellant in which he claimed to have reported that some of the vehicles taken to him got burnt. In my view, the prosecution should have checked with the police station concerned to ascertain if indeed such a report had been made by the appellant and whether the abstract was issued by the said police station Failure to ascertain the authenticity of the abstract did not give any weight to that abstract.

25. In the end, I find that the prosecution only proved that the appellant stole motor vehicles in Count 1 and 2, and stole motor vehicle parts of motor vehicle, KAW 249 Z, as specified in Count 8. I agree with the trial court as regards conviction and confirm it on the three counts. I quash the convictions as relates to Counts 3 – 7and set aside the sentences thereon.

26. On sentence, the appellant contends that the court erred in ordering the sentences to run consecutively. Sentence is an exercise of the court’s discretion guided by the law, the Judiciary Policy Sentencing Guidelines and the character of the appellant amongst other consideration. The property stolen belongs to the public. The appellant took advantage of his position as mechanic to convert the said Government vehicles. Even after the Committee had seen the vehicles at his garage, he still went ahead to conceal them. In my view, he does not deserve the mercy of this court. The sentence of two (2) years on each count is not harsh or excessive. I will sentence him as follows:-Count 1 - Two (2) years imprisonment;Count 2 - Two (2) years imprisonment;Count 8 - One (1) year imprisonment.The sentences to run consecutively . It is so ordered.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 11TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino for the stateAppellant PresentMs. Emma / Phelix –Court Assistant