[2016] KEHC 8261 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 73 of 2016

P L O.......…...……..…..…………………….APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in the Chief Magistrate's Court at Nairobi in Criminal Case 358 OF 2010 delivered by Hon. F. Munyi, SRM on 12th April, 2016)

JUDGMENT

BACKGROUND

P L O, the Appellant, was charged for committing various offences. In Counts I to V, he was charged with being in possession of an instrument used for making stamp impression contrary to Section 378(a) of the Penal Code. The particulars of Count I were that on 19th February, 2010 at Reli Co-op House along Hakati Road in Nairobi within Nairobi area, jointly with others not before the court, without lawful authority or excuse knowingly had in your possession an instrument capable of making an impression of Kenya Revenue Domestic Taxes Department used for the purpose of Public Revenue by the Kenya Revenue Authority.

The particulars of Count II were that on 19th February, 2010 at Reli Co-op House along Hakati Road in Nairobi within Nairobi Area, jointly with others not before court, without lawful authority or excuse, knowingly had in his possession an instrument capable of making an impression resembling an impression of Kenya Revenue Authority Road Transport department used for the purpose of Public Revenue by the Kenya Revenue Authority.

The particulars of Count III were that on 19th February, at Reli Co-op House along Hakati Road, the Appellant, jointly with others not before the court, without lawful permission or excuse, knowingly had in his possession an instrument capable of making an impression resembling an impression of licensing officer Registrar of Motor Vehicles Nairobi used for the purpose of public revenue by the Registrar of Motor Vehicles.

The particulars of Count IV were that on 19th February, 2010 at Reli Co-op House along Hakati Road in Nairobi within Nairobi Area, jointly with others not before the court, without lawful authority or excuse, knowingly had in his possession an instrument capable of making an impression resembling an impression of Kenya Police vehicle inspection unit used for the purpose of public revenue by the Kenya Police Department.

The particulars of Count V were that on 19th February, 2010, jointly with others not before the court, without lawful authority or excuse, knowingly had in his possession an instrument capable of making an impression resembling an impression of Director of Motor Vehicles Kenya Police inspection unit Nairobi, used for the purpose of Public Revenue by the Kenya Police Department.

The sixth count was making a document without authority contrary to Section 357(a) of the Penal Code. The particulars were that on an unknown date, at Reli Co-op House along Hakati Road in Nairobi within Nairobi Area, jointly with others not before the court, with intent to defraud or to deceive, without lawful authority or excuse made a certain document namely two P.S.V conductors licences bearing serial number 250703 purporting them to be genuine conductor licences issued by the registrar of motor vehicles.

The seventh count was forgery contrary to Section 349 of the Penal Code. The particulars were that between 11th January, 2010 and 19th February, 2010 at Reli Co-op House along Hakati Road in Nairobi within Nairobi Area, jointly with others not before the court, with intent to defraud or to deceive forged a certain document namely vehicle inspection certificate serial number VC-133055 purporting it to be a genuine vehicle inspection certificate for a motor vehicle registration number KAN 288 E issued by the certifying officer, vehicle inspection branch Nairobi.

The eighth count was for the offence of making a document without authority contrary to Section 357(a) of the Penal Code. The particulars were that on unknown dates at Reli Co-op house along Hakati Road in Nairobi within Nairobi, jointly with others not before the court, with intent to defraud or deceive, without lawful authority or excuse, made certain document namely Vehicle Inspection Unit Memorandum forms serial number 00522, 00523,00598, 00599 and 00600 purporting them to be genuine vehicle inspection unit Memorandum forms made by the government printer Nairobi.

The ninth count was for the offence of having suspected property contrary to Section 323 of the Penal Code. The particulars were that on 19th February, 2010 at Reli Co-op House along Hakato Road in Nairobi within Nairobi area, having been detained by No. 44325 PC Joseph Mucheru, No. 62324 PC Moses Mwenda, No. 86342 PC Japhet Mambi and No. 86324 PC Charles Olony as a result of the powers conferred by section 26 of the Criminal Procedure Code, had in his possession Motor Vehicle plate KAZ 496B, KAT 191E, KNC 295, KAA 751Q, KUP 753, KAY 674A and KZZ 782 reasonably suspected to have been stolen or unlawfully obtained.

The Appellant was convicted in respect of Counts 1 to V and in count IX. He was sentenced to serve 5 years imprisonment in Counts I to v and on year imprisonment count IX. The sentences were to run concurrently. He was dissatisfied with the both conviction and sentence and he preferred this appeal. In his Amended Petition of Appeal, he raised nine grounds of appeal which I duplicate as under;

1. That the learned trial magistrate erred in convicting the Appellant on a duplex charge.

2. That the learned trial magistrate erred by finding that there was sufficient evidence to support the charges of being in possession of an instrument used for making stamp impressions and having suspected stolen property.

3. That the learned magistrate erred in failing to hold that the prosecution had not established its case beyond reasonable doubt.

4. That the learned magistrate erred by delivering judgment after three years, a fact that prejudiced the Appellant.

5. That the learned trial magistrate erred by failing to appreciate that during their arrest the Appellant's rights were violated as they were not given a right to communicate with an advocate or a person whose attendance was necessary.

6. That the learned trial magistrate erred in failing to appreciate the fact that the police failed and/or neglected to thoroughly investigate the circumstances surrounding this case.

7. That the learned trial magistrate erred in failing to realize that the Appellant was arrested and consequently prosecuted on suspicion merely because he was found in an office about 10 people shared.

8. That the trial magistrate erred in failing to realize that the accused persons were forced and/or coerced to sign inventories.

9. That the conviction was dangerous and against the weight of the evidence.

SUBMISSIONS

The Appeal was canvassed by way of filling written submissions. The Appellant was represented by learned counsel, Mr. Osiemo. The case for the Appellant was that the prosecution did not prove that the exhibits recovered were in his possession. He took issue with the fact that the arresting police officers searched his office in his absence. Besides, apart from him there were other occupants of the office who the police ignored as possible culprits. Furthermore, although an inventory of the recovered goods was made, he was forced to sign the same as result of which the police blatantly implicated him in the offences.

His further submission was that his constitutional right to a fair trial as provided under Article 50(2)(e) of the Constitution was violated. He noted that the provision placed a mandatory requirement that the trial should begin and be concluded within a reasonable time. To the contrary the trial, was concluded in 2013 and judgment set for 20th March the same year. Surprisingly, it was not until 6th April, 2016 that the same was delivered. There was therefore a delay of a clear 39 months which was inordinate in the circumstances. Besides, the delay in writing the judgment meant that the magistrate could not recall the demeanor of the witnesses which is a core consideration in evaluating the credibility of the evidence adduced.

Finally, he took issue with the sentence imposed which he submitted was harsh and excessive in the circumstances. He urged this court to temper justice with mercy in sentencing having regard to the fact that he was an aged man and HIV positive.

On behalf of the Respondent, learned State Counsel Ms. Wario opposed the appeal. She submitted that although the Appellant in his grounds of appeal indicated that the charge sheet was defective he did not demonstrate the defect in his submissions. On the submission that the Appellant was forced to sign the inventory she submitted that the Appellant did not tender any evidence that he was coerced to sign the same. In any case, the only thing that the police officers did was to inform him of the consequences of not signing the inventory. On the propriety of the sentence, Ms. Wario was of the view that the same was commensurate with the offence. Furthermore, although the Appellant was suffering from HIV, it was a condition that the prison was capable of handling. She urged that the appeal be dismissed.

EVIDENCE.

PW1, Runeel Gitahiwas an accountant working with Kenya Revenue Authority, hereafter KRA. He was the Chief Cashier Road Transport Department. He said he was in charge of opening the system, taking requests and safe custody of accountable documents. He also issued the documents to cashiers. He recalled that around 26th April, 2010 he was assigned to confirm the authenticity of some items, namely a revenue licence stamp No. 4, PSV conductor's licence bearing serial No. E-250703, a KRA stamp and PSV licences. He made a report dated 26th April 2010 in which he indicated that the items were all not genuine. In coming to this conclusion he compared them with the samples they had in custody. With regards to the stamp, he found that it had no handle and that the outer line was continuous while on a genuine stamp there is a break between the lines. He also found that the thickness of the outer line in the stamp was wider than on the genuine one. Further, the PSV licences had the same serial number whereas genuine PSV licences have dormant numbers. Also no two PSV licences hold the same number. In addition, the words'officer'and'Nairobi' had been interchanged and that their seal was not from KRA as KRA did not seal documents before they are signed. The two documents were unsigned. The PSV cards were blank whereas genuine PSV licences will always have the details of the licensed lender. Further, the fee payable was indicated as Kshs. 625/= on the samples whereas the genuine ones show Kshs. 500/= as the fee payable. He produced his report in court.

PW2, Martin Omondiwas the Deputy Director of Motor Vehicle Inspectorate and a gazetted motor vehicle examiner. He recalled that on 4th March, 2010 some police officers went to their center in Industrial Area, Nairobi and presented some documents for verification. The documents were; 2 inspection stamps, 2 vehicle inspection certificate stickers and 5 memorandum forms. He compared the stamps with their genuine stamp and confirmed they were not genuine. He testified that theirs read'Director of Motor Vehicles' while the sample read'Director of Motor Vehicle'. He testified that the genuine stamp also read'Vehicle Inspector' while the fake read'Vehicle Inspection'. A vehicle inspection certificate No. VC Z133055 was issued to motor vehicle KBD 161V a Toyota Saloon whose owner was Jared Oiso. Their records however showed that it was registered to motor vehicle number KAN 288F. He also compared memorandum forms purportedly issued by their office to the Registrar of Motor Vehicle. On examination, he noted they were fake as genuine ones have six digits as opposed to the five digits on the fake ones. He prepared a report dated 4th March, 2010 which he adduced in evidence.

PW3, John Kihundo Onwomawasa Senior Assistant Commissioner at KRA. He was presented with a rubber stamp written'Kenya Revenue Authority Domestic Taxes Department West in Nairobi'and was asked to confirm if it was genuine. The genuine stamp on the other hand read 'Kenya Revenue Authority Domestic Taxes department'with the addition of his name as Senior Assistant Commissioner. He produced an impression of a genuine stamp accompanied by a letter of his finding dated 12th March 2010.

PW4, Stephen Omondi Oduora manager at Reli Co-operative House. He confirmed that room 406 from which the Appellant was arrested was rented to one Stephen Asiyo to operate Dalawa Stationers. He testified that the office is divided into two rooms using cardboard. The tenant occupied the inner room while his employees the first room. He testified that the Appellant was unknown to him.

PW5, John OndegoofGovernment Printers received a letter from Police Highway Patrol Unit based at Ruaraka to confirm the genuineness of Memorandum forms and PSV conductor licences which resembled those printed by Government Printers. He confirmed they were not genuine as they had five digits while those they printed had six digits. They also did not have consistent spacing. There were also marked missing impressions on them. With regards to the PSV conductor licences, he found that they were both sharing the same registration number of vehicles which was inconsistent with the standard procedure. He produced as evidence reports of his findings dated 27th April, 2010 and another dated 11th May, 2010 respectively.

PW6, James Peter Mburuworked with KRA Motor Vehicle Registry as a revenue officer. He recalled that in February 2010 he received a letter accompanied by a sample rubber stamp and asked to confirm if it was genuine. The stamp read'Motor Vehicle Registry Kenya Revenue Authority'. He confirmed that the stamp did not belong to KRA. He produced a sample impression of the genuine stamp. He produced a report dated 8th March, 2010 in that respect. He was also requested to confirm to which motor vehicles some registration numbers recovered from the Appellant were registered. He confirmed using copies of records from the Registrar of Motor Vehicles that Number KNC 295 was registered to a motorcycle owned by Gunter Reschkeb, KZZ 782 for a motorcycle owned by Kenya Industrial Estates, KAT 191 E was a Ferguson tractor owned by Gachuni Jackson, KAZ 469B was a tractor owned by James Finleys(K) Ltd, KAY 674 was a Nissan saloon owned by Ngugi Patrick and KBC 498 X was a motorcycle owned by Makindu Motors Ltd.

In cross examination he stated that all the number plates were genuine except for KZZ 782. He stated that most of the number plates were for motor cycles but had been made defunct by the new registration numbers. He stated that when a registration number was changed the old ones were destroyed.

PW7, No. 65925 PC Japheth Mambo,worked at traffic headquarters, Highway Patrol Unit as an investigating officer. He recalled that on 9th February, 2010 he was in the office in the company of PC Mucheru, PC Mwenda and PC Olonyu when PC Mwendo received information that there were some people selling fake traffic documents at Reli Co-operative House. They proceeded to the house on the 4th Floor room 406 A. At the front office was the Appellant who introduced himself as the occupant. He was with two others. He told the police that the other persons were his employees. Another man was sitting in the inner office.

Police told all the occupants that they were looking for fake stamps and asked them to produced them voluntarily. The Appellant produced 2 rubber stamps and handed them over. One was for vehicle inspection department along Likoni Road and the other was written by licensing officer No. 4. He found a stamp for director of motor vehicles, Kenya Police, Likoni. Police also recovered another stamp written ‘Kenya Revenue Authority Road Transport Department’ and some memorandum forms for vehicle inspection, rubber stamp for Domestic Tax Department, and some number plates. An inventory was made and signed by all the witnesses present and suspects.

The inner room had a cabinet. Police asked the occupans to open it. The Appellant who had the key opened it. From it, 2 PSV licences for conductors which had the same serial numbers, an inspection licence serial No. BC Z133055 with registration number KAN 288F were recovered together with several number plates. PC Mucheru made another inventory and all those present signed it.

PW8, No. 44325 PC Joseph Mucheruaccompanied PW7 and he corroborated his evidence in all respects. In addition, he testified that the Appellant had registered a business by the nameRosum Ventures for which he had a business permit. Record from the registrar of companies showed that the business was owned by Rose Chelagat Manyo but he Appellant admitted having registered the company. The witnesses forwarded all the recovered exhibits to the relevant departments for confirmation of their authenticity.

PW9, No. 217401 Emmanuel Kenga,a document examiner based at CID headquarters, Nairobi. He was requested by the investigating officer to examine some questioned stamp impressions for purposes of confirming if they were genuine. He examined the stamp impressions and found that they did not match and were not made with the same instrument as the genuine ones. He prepared a report on his findings which he produced in court.

The court ruled that the prosecution evidence had established aprima facieto warrant the Appellant to give a defence. He testified as DW1. He did not deny that the items exhibited in court were recovered from the office he was found occupying. He confirmed he had sublet the front office and shared it with one Joseph Odenyo(deceased), Jeremia Onyango and Geoffrey Rando. On the date of his arrest, his sister and son had visited him. Later his aunt joined them. His son had come to repair a computer. The latter two were jointly charged with him. He stated that as the police searched the front office he was asked to move to the inner office, and thereafter to sign the inventory so as to avoid the loss of the recovered items. They then called him from the inner office while the items were on the table and PC Mucheru was taking an inventory. He denied he made any of the stamps and memoranda recovered. He testified that the number plates were from motor cycles and belonged to persons he was assisting in having them replaced.

DETERMINATION

On evaluating the evidence and the respective submissions, I have arrived at the issues for determination as,whether the Appellant's right to a fair trial as set out in Article 50(2)(e) was infringed, whether the Appellant was coerced into signing the inventory, whether the Appellant was in possession of the items recovered whether the charges were proved beyond a reasonable doubt and whether the sentence imposed was harsh and excessive in the circumstances.

It was the Appellant’s submission that he was prejudiced as a result of the judgment taking too long to be delivered. Whereas this court considers the period it took to write the judgment as inordinate and inexcusable the record of proceeding shows that the Appellant was released on bail on the same date he took the plea, on 22nd February 2010. On the same date he paid a cash bail of KShs. 200,000/= vide receipt number 0050525. He was thus not held in custody as he awaited the judgment. Again, I note that under Section 168(1) of Criminal Procedure Code no time limit is set within which a judgment should be delivered after the conclusion of the trial. On the whole the release of the Appellant on bail mitigated any mental harm he may have suffered during the waiting period.

The Appellant's contended that he was coerced to sign the inventory of the goods recovered. He testified that PC Olonyi told him that if he did not sign the inventory the items could get lost. He intimates in his submission that this amounted to coercion. The Respondent submitted that this did not amount to coercion but that the officer was only informing him of the standard operating procedure. A core factor in requiring the owner of the premises where goods have been recovered to assist the police with their investigations to sign the inventory is that it provides written proof of the origins of the exhibits and a proper chain of custody. It can also be used to regain items utilized by the police in their investigations. It also serves the purpose of ascertaining that the goods recovered have not been interfered with and are indeed the actual goods recovered from a particular place. That way, an accused cannot later turn around to state that the goods on the inventory were not recovered from his possession or the premises he was found in. That is why he is required to sign the inventory to ascertain these facts. The issue of whether he was the actual owner or had the knowledge of their existence from where they are recovered is a matter of evidence to be adduced in court. Therefore, an inventory is not so much an exhibit that proves ownership of certain items, more so possession. It further serves the purpose of verifying and clarifying the chain of custody of the exhibits. The Appellant by signing the inventory did not thus automatically acquire title to the items but merely confirmed that the items were found in the office he was found in at the time of the recovery. It thereafter behooved the prosecution to proof that the recovered items belonged to the Appellant by virtue of some tenancy of, or form of occupancy in, the office. Be that as it may, the Appellant did not demonstrate that he was coerced to sign the inventory. But as I shall hereafter demonstrate, the prosecution proved beyond a doubt that the recovered items belonged to him.

PW4 who was the manager of Reli Co-operative House testified that he did not know the Appellant but knew the main tenant, the man in the inner room, and that the outer room was reserved for his workers. He also testified that he could identify the people who worked in the front office. This indicated that the Appellant was not regular in the office. However, his testimony that he was sub-letting the outer office meant that it was not in contention that he worked at the office. Besides, PW7 and 8 testified that when they arrived they asked him to surrender any contraband and he gave them two stamps. They then testified that they searched the outer office and recovered various items. Furthermore, the Appellant personally produced keys to a cabinet that was in the inner office where the Police Officers recovered the forged PSV conductor licences. This fact defeats the Appellant's argument that the items recovered in the office probably belonged to any of the sub-letters he mentioned in his defence. At the best, he would have called them to support his defence. He did not, which left the prosecution case unshaken. Besides, even the main tenant who was known by the building manager (PW4) did not have the key to the cabinet where some of the exhibits were recovered. As such, the Appellant could not convince the court that he did not have knowledge of the existence of the exhibits.

And, were the charges were proved beyond a reasonable doubt? The court has already discharged the issue of the possession of the items by the Appellant. What it must now determine is whether the items so proved to be in his possession were of such nature as to conform to the particulars of the charges. PW9 adduced evidence that the instruments which were of counts 1-5 retrieved from the Appellant were used to make stamp impressions that were meant to resemble the genuine ones. This was corroborated by the evidence of PW1, PW2, PW3 and PW6 who verified the instruments only resembled the ones used in their respective offices but were not genuine. This established the elements of counts I and VI.

With regards to the ninth count, the number plates were found to belong to various proprietors and not the Appellant. The Appellant never indicated how he was in possession of them except stating that he had them to facilitate replacement to new age plates. He never adduced evidence showing he was legally in possession of the same. PW6 adduced evidence that old number plates are surrendered before new one are issued. Logically therefore, the Appellant should not have kept a number place that was not in use; specifically, affixed to a motor vehicle when it had been rendered redundant by issuance of a new one. The count was thus also proved beyond a reasonable doubt.

With regard to sentencing, the Appellant was sentenced to 5 years imprisonment in respect of Counts I to V respectively and one year imprisonment in respect of count IX. His submission was that the sentences were excessive. Under Section 378 of the Penal Code, he was liable to imprisonment for 7 years in Count IX is a misdemeanor as provided under Section 323 of the Penal Code. The sentences in counts I to V were ordered to run concurrently.

I emphasize that sentencing is an exercise of discretion of the trial court. But the trial court must treat each case individually given the prevailing circumstances. Some of the factors that may inform the court in sentencing include, but are not limited to, the nature of the offence, the prevalence of the offence, the penalty provided by the law and accused’s mitigation. In addition, case as clearly set the principles to be applied in sentence as was laid down in the case of OMUSE VS REPUBLIC [2009], KLR, 214when Hon. O’Kubasu, Waki and Onyango Otieno, JJA, when relying on decided cases said;

In MACHARIA VS R [2003] E.A. 559 this court stated:

“The principle upon which this Court will act in exercising its jurisdiction to review or alter a sentence imposed by the Court have been firmly settled as far back as 1954, in the case of OGOLA S/O OWUOR [1954] EACA, 270 wherein the predecessor of this court stated:

The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant hey might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge, unless as was said in JAMES VS R [1950] 18 EACA 147, it is evidence that the Judge acted upon some wrong principles or overlooked some material factors. To this we would also add a third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the caseR v SHERXHAWSKY [1912] CCA 28 TLR 263. Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and it was thus not proper exercise of discretion in sentencing for the court to have failed to look at the facts and circumstances of the case in their entirely before settling for any given sentence. See AMBANI VS R [1990] KLR 161. ”

Moreover, an appellate court is empowered by Section 354 (3)(b) of the Criminal Procedure Code to alter the sentence when the appeal is only against the sentence. It provides thus:

“254(3) The Court may then, if it considers that there is insufficient ground for interfering, dismiss the appeal or may

(b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence.”

In the present case, the offences in counts I to V were no doubt serious. But a look at the trial record demonstrates that the Appellant was a first offender. He pleaded remorsefulness. He is a man of the upper middle age. Given the latter circumstance, he ought to be an example to the younger generation. He undertook to do acts that would amount to a denial of the much needed revenue to the government. He must therefore suffer the consequences of his choice. He pleaded with this court to consider that he was HIV positive. But, this is the more reason he ought to keep away from wrong doing. After all, the condition can be adequately catered for in prison. Taking all factors into consideration, I think that sentence imposed was definitely excessive. In exercise of the powers conferred to this court under Section 354(3)(b), I shall reduce the sentence in Counts I to V to two (2) years imprisonment on each of the counts. I shall not disturb the sentence in count IX. The sentences shall run concurrently.

In the end, this appeal partially succeeds. I dismiss it in respect of the conviction. On sentence, the same is substituted with what I have imposed above. The Appellant paid cash bail on the date of plea and so the sentence commences from the date of conviction. It is so ordered.

Dated and Delivered at Nairobi this 1st day of November, 2016.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr. Otieno for the Appellant.

2. Ms. Sigei for the Respondent.