[2017] KEHC 1403 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KAKAMEGA

CRIMINAL APPEAL NO. 56 OF 2016

BETWEEN

RAJAB SENELWA ABDALLAH..........................APPELLANT

AND

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

(Being an appeal from the original conviction and sentence of Hon. E. Muleka, SRM dated 24thNovember 2015 at the Senior Principal Magistrate’s Court at Hamisi in Criminal Case No. 152 of 2013)

JUDGMENT

1. The appellant, RAJAB SENELWA ABDALLAHwas charged, convicted and sentence to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The appellant and 2 other co-accused were also charged with gang rape and indecent act with a woman contrary to section 10 and section 11(1) of Sexual Offences Act, 2006 respectively. The co-accused were acquitted on all charges and while the appellant was acquitted on the rape charge and convicted on the principal charge of robbery with violence.

2. The particulars of the principal charge facing the appellant was that, on 20th March 2013 at [particulars withheld] in Vihiga County, the appellant, jointly with his co-accused and others not before the court, while armed with offensive weapons, namely pangas, metal bars and hammers robbed P I of 50kg of sugar, two mobile phones Nokia 1110 and Alcatel, one dozen Kifaru match boxes, 10 pieces of 100gm blue band, one dozen Close-up, 5 500gm chipsy cooking fat, 3 500ml Popco cooking fat, one dozen mariandazi baking powder, one dozen Tiptop milking jelly, 6 pieces of Geisha soap, 15 satches 15gm tea leaves, 5 pieces of lido bar soap, 12 satchets of Omo, 10 tissue papers, 3 pieces of sunlight soap, Kshs. 5000/- in cash and 2 1kg Jambo maize flour all valued at Kshs. 30,000/- and at the time of such robbery, they used actual violence.

3. At the trial, the prosecution called 7 witnesses while the appellant gave sworn testimony. He now appeals against the conviction and sentence. In his petition of appeal, the appellant contended that the trial court relied on the identification of one witness which was insufficient and amounted to dock identification. The appellant further contended that the trial magistrate erroneously convicted him based on the exhibits when there was no documentary evidence in an inventory to prove the recovery. He also attacked the judgment on the grounds that the prosecution failed to prove that the items recovered belonged to the complainant. Lastly, the appellant submitted that the court failed to consider his defence and the fact that there was a grudge between him and the arresting officer who could have fabricated the charges against him.

4. The respondent opposed the appeal on the ground that the circumstances under which the appellant was identified were favourable for positive identification and free from the possibility of error and as such the conviction was safe.

5. As this is the first appeal, I am required to evaluate the evidence afresh and reach an independent conclusion as to whether or not to uphold the conviction (see Njoroge v Republic [1987] KLR 19). This exercise calls for me to set out the material facts as they emerged before the trial court and it was as follows.

6. Patrick Indimuli (PW 1) owned a shop selling assorted consumer goods. On the night of 20th March 2013, while he was at home with his wife, P K (PW 3), some people came and knocked the door which was open. 6 people came into the house and put off the lantern lamp. They had torches and 3 of the assailants had covered their faces. The assailants took him and PW 2 to the bedroom and started demanding money and their phones while threatening to kill them. PW 1 gave them Kshs. 5,000/- and his phone. The assailants also cut him on the back. The assailants then proceeded to rape his wife in his presence. The assailants then removed his clothes and frog marched him to his shop which was about 500 metres away where they met E N (PW 2) who was sleeping in the shop at the time.

7. PW 2 recalled that he was sleeping when he had someone attempting to open the padlock. He woke up and when he opened the door, he saw several assailants with torches. They blocked his mouth, tied his hands and legs while threatening to kill him. Both PW 1 and PW 2 recalled that they saw the assailants taking coins and removing assorted goods from the shop. They also recalled that the other assailants were referring to one of the assailants who was leading the group as Corporal Rono.

8. PW 1 testified that after they had removed the goods from the shop, he was taken and locked in a pit latrine with PW 3 who had also been brought to the shop. PW 3 testified that as she had not been tied tightly, she untied herself and kicked the door open. After the assailants left, PW 1, PW 2 and PW 3 went and reported the incident at Lyaduywa Administration Police Camp.

9. Corporal Ben Oruko (PW 5), an officer at Kegondi AP Post, received the report of the robbery from PW 1 and PW 3 on 19th March 2013 at about 10. 00pm. He recalled that both of them were injured and he advised them to go to hospital while he and another officer went to the scene. PW 1 and PW 3 also went and reported the incident at Mbale Police Station on 19th March 2013. Corporal Shem Ogunya (PW 7) issued P3 forms after noting that PW1 and PW3 had been injured by. Susan Korir (PW 6), a clinical officer, testified that on 19th March 2013 at about noon, she saw PW 2 and confirmed that she had been injured and had been raped. She also examined PW 1 and noted that his face had injuries and was swollen. He was complaining of chest pains and had pain along the spinal area. His legs were also swollen. She classified his injuries as harm and signed the P3 forms.

10. On 20th March 2013, PW 5 recalled that he received information that some goods had been found in suspicious circumstances. At about 9. 00am., together with other officers, he went to a house and found the appellant with assorted goods. PW 5 alerted PW 7 that people had gathered at the appellant’s place and wanted to lynch him. Police reinforcements were sent from Mbale Police Station and the appellant was arrested. PW 7 testified that when he went to the appellant’s place he took custody of assorted household good recovered by PW 5. PW 1 identified the goods recovered at the police station.

11. The appellant denied the charges against him and gave sworn testimony. He told the court that on 20th March 2013 at 8. 00am, PW 5 and another officer went to his home and took him to the AP Camp. He testified that he had been told that the Chief was looking for him but did not find him when he went to his place. He stated that he was later taken to Mbale Police Station after being beaten by a police officer. Later on, he was charged at the Vihiga Magistrate Court. He told the court that PW 5 had a grudge with him, as they had fought over his wife.

12. The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of Oluoch v Republic[1985] KLR 549where it was held that:

Robbery with violence is committed in any of the following circumstances:

(a) The offender is armed with any dangerous andoffensive weapon or instrument;or

(b) The offender is in company withone or more person or persons;or

(c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………”[our own emphasis].

13. The use of the word ‘or’in this definition means that proof of any one of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code. In Dima Denge Dima & Others v Republic CA Criminal Appeal No. 300 (UR) the Court of Appeal held that:

The elements of the offence under section 296(2) are three in number and they are to be read, not conjunctively, but disjunctively. One element is enough to found a conviction.

14. In this case, the evidence I have outlined above is clear that a robbery took place. The credible evidence of PW 1, PW 2 and PW 3 is that they were attacked on the material night by a gang of armed assailants. They inflicted violence on PW 1 and his injuries were confirmed by PW 6. The witnesses also testified that the assailants took various assorted goods from the shop. Each of the elements of the offence of robbery with violence were proved. The question before the trial court and this court is whether the appellant was part of the gang that robbed PW 1.

15. The prosecution case was grounded on direct evidence of identification in difficult circumstances and the doctrine of recent possession. In Wamunga v Republic[1989] KLR 424,the Court of Appeal warned that;

[W]here the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be the basis of a conviction.

Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him (see Maitanyi v Republic[1986] KLR 198and R v Turnbull [1967] 3 ALL ER 549).

16. I have considered the testimony of PW 1 and PW 2 and they both admit that the incident took place in the dark but the assailants had torches. However, they did not testify as to how they identified the appellant or indeed describe him. Although they stated he was referred to as Corporal Rono, it is not clear whether they knew him prior to the incident. Moreover, no identification parade was done to test his identity in the event he was a stranger. I therefore find and hold that the prevailing circumstances were not favourable for positive identification.

17. The prosecution case rested firmly on the doctrine of recent possession which the Court of Appeal for Eastern Africa in Rex v Bakari s/o Abdulla [1949] 16 EACA 84 explained as follows:

That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as well and if all circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal.

18. The ingredients to be established in proving a case based on the doctrine of recent possession were distilled by the Court of Appeal in Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga v Republic,NYR CA Criminal Appeal No. 272 of 2005 [2006]eKLRas follows;

It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.

19. Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. This burden is evidential only and does not relieve the prosecution from proving its case to the required standard. That explanation need only be a plausible (see Malingi v Republic[1988] KLR 225. In PaulMwita Robi vRepublicKSM Criminal Appeal No. 200 of 2008, the Court of Appeal observed that;

Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is (sic) especially within the knowledge of the accused and pursuant to the provisions of section 111 of the Evidence Act Chapter 80, the accused has to discharge that burden.

20. In this case, the testimony of PW 1, PW 2 and PW 3 is that the assailants who robbed PW 1’s shop on the night of 19th March 2013 stole an assortment of consumer goods including mobile phones. PW 5 testified that he recovered an assortment of consumer goods at the appellant’s house the very next day after the robbery, that is on 20th March 2013. Those goods were handed over to PW 7 and subsequently identified by PW 1 as those from his shop. When PW 5 was cross-examined by the appellant, he stated that the appellant did not own a shop. In his defence, the appellant did not give any explanation as to why he had a large and disparate assortment of consumer goods when he did own a shop nor lay claim to any of the items. He however confirmed that PW 5 came to his home on the morning of 20th March 2013.

21. The appellant complained that there was no inventory of the recovered items produced. The preparation of an inventory is a procedural issue and as long as the recovery and chain of evidence established that the items produced in court are the one’s recovered, an inventory is not necessary. In Leonard Odhiambo Ouma & Another v Republic,CA NKU Criminal Appeal No. 176 of 2009 (UR), the Court of Appeal observed as follows:

Failure to compile an inventory as contended in ground 5, is in our view a procedural step which in the circumstances, did not prejudice the appellants in any way and for this reason the omission did not vitiate the trial.

22. I am satisfied that all the elements of the doctrine of recent possession were proved by the prosecution. The evidence inextricably links the appellant to the robbery that took place the previous night before the assorted goods were recovered in his possession. The appellant did not attempt to give any explanation as to why he had these items.

23. For the reasons I have set out, I affirm the conviction and sentence.

24. The appeal is dismissed.

SIGNED AT KISUMU

D.S. MAJANJA

JUDGE

DATED and DELIVERED at KAKAMEGA this 15th day of November 2017.

R. N. SITATI

JUDGE

Appellant in person.

Mr Ng’etich, Senior Prosecution Counsel, instructed by the Office of Director of Public Prosecutions for the respondent.