[2019] KECA 138 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

(CORAM: GATEMBU, SICHALE, KANTAI JJ.A)

CRIMINAL APPEAL NO. 112 OF 2013 (R)

BETWEEN

RICHARD LENGURO RAMACHA....................................1STAPPELLANT

LONKIYA LELIKAT............................................................2NDAPPELLANT

JACOB LELEMEUWA........................................................3RDAPPELLANT

AND

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

(Appeal from the judgment of the High Court of Kenyaat Nakuru (Wendoh & Emukule, JJ)

dated and delivered on 31stMay, 2013

In

H.C.CR.A No. 30 of 2011)

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JUDGMENT OF THE COURT

This is a second appeal emanating from the judgment of Wendoh & Emukule, JJdelivered on31stMay, 2013in High Court Criminal Appeal No. 30 of 2011. The HighCourt upheld the convictions and sentences imposed by the trial court of 7 yearsimprisonment on the 3 appellants, namelyLonkiyia Lelikat,Jacob LelemeuaandRichard Lenguro Ramachawho had been charged in Maralal Senior ResidentMagistrate’s Court in Criminal Case No. 68 of 2009. Although the appellants faced fivecounts of robbery with violence contrary to section 296(2) of the Penal Code, they wereacquitted of the five counts of capital robbery. The appellants were however foundguilty of handling stolen goods contrary to Section 322 (2) of the Penal Code andsentenced to serve seven (7) years imprisonment as stated above.

In this second appeal, the appellants have raised three (3) grounds contained intheir supplementary grounds of appeal. They faulted the High Court for:

(i) failing to analyse the evidence on record;

(ii) applying the doctrine of recent possession; and

(iii) convicting the appellants on charges which were not proved beyond reasonable doubt.

On 18th March, 2019, the appeal came before us for plenary hearing. Learnedcounsel,Mr. Bichangafor the appellants faulted the High Court for failing to analysethe evidence on record. It was his view that there were contradictions in theprosecution witnesses’ evidence setting out the sequence of events surrounding theappellants’ arrest. Counsel submitted that there was only general evidence given againstthe appellants. Moreover, that none of the complainants was able to identify therobbers who attacked them.

Mr. Baraka,the learned State Counsel opposed the appeal. He supported thefindings of the High Court, correctly so, in our view, in not applying the doctrine ofrecent possession to the charge of robbery with violence as the stolen items from therobbery that occurred on31stJanuary, 2009were recovered about two months downthe line and it was possible that the items could have changed hands. It was his viewthat the stolen items, recovered from the 1stappellant’s house, were thereafterpositively identified by the complainants. According to him, the conviction on thealternative charge of handling stolen property was safe. Counsel therefore urged thecourt to dismiss the appeal.

Our mandate in a second appeal is as stipulated in Section 361(I)(a) of theCriminal Procedure Code. It provides:

“ 361 (I) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section:

(a) on a matter of fact, and severity of sentence is a matter of fact; or

(b) against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.”

In so far as case law is concerned, the decision of David Njoroge Macharia vs.

Republic [2011] eKLR sums up the said mandate. In the said decision, it was stated:

“Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings. (see alsoChemagong vs. Republic [1984] KLR 213).”

Similarly, in Kaingo versus Republic [1982] KLR 213 it was held as follows:

“A second appeal must be confined to points of law and this Court will notinterfere with concurrent findings of fact arrived at in the two courts belowunless based on no evidence. The test to be applied on second appeal iswhether there was any evidence on which the trial court could find as it did(Reuben Karoti S/O Karanja versus Republic [1956 17 EALA 146].”

In light of our above mandate, it becomes necessary to subject the entire evidenceadduced at the trial court and re-analysed by the 1stappellate court to an exhaustivereview so as to determine whether each of the courts below exercised its mandate asstipulated by law.

The evidence shows that on the night of 31st January 2009, Monicah Lolochum,Joel Maina Gitonga, Wilson Wango’ombeandJosphat Lenanyukiewere travelling in alorry, registration number KAU 682L, heading to Maralal. Approximately 3 to 5 kmfrom Suguta, they were waylaid by a pair of armed robbers. This vulnerable group wasrobbed of all their valuables: money, mobile phones and different pieces of clothing.

Luckily, despite being armed with a G3 rifle and an AK-47 rifle which they used tophysically beat up the men in the vehicle, the robbers left their victims alive.

The victims continued on with their journey to Maralal and reported the robberyto the police. Unfortunately, as the assailants were prudent enough to cover their facesduring the robbery, the complainants were unable to give a proper description of theirattackers. In fact, the complainants were unable to give any sort of identificationincluding even dock identification when the suspects were arraigned before court.

During the robbery, Monica (P.W.1) lost a handbag and a suit which on 27thMarch, 2009, she found at Maralal Police Station. She however did not know who wasfound with her items.Josphat Lenanyukie, P.W.2,Wilson Wang’ombe Kungu, P.W.3andGodfrey Gachoka, P.W.4, all lost phones, a jacket and cash. These were howevernot recovered.

Following a tip off, CPL Samuel Chacha Okongo (P.W.5) went to the 1stappellant’s home on26thMarch, 2009. According to him, they recovered several itemsincluding a handbag and a lady’s suit which were identified by P.W.1 as hers. It washis evidence that they also arrested the 3rdappellant from this house. The 2ndappellant, according to P.W.5 fled from the scene and he was arrested later. P.W. 5told the trial court that he did “… not know how or where the 2ndaccused was arrested”.

In their unsworn statements of defence, all the three appellants denied thecommission of the offence.

In the judgment dated 24th January, 2011, the three were found guilty by the trialcourt of the alternative charge of handling stolen goods with the knowledge that thegoods were unlawfully obtained. Each was sentenced to serve seven (7) yearsimprisonment. The appellants’ appeal to the 1stappellate court was dismissed, hencethis second appeal.

In the re-evaluation of the evidence, the 1st appellate court found that the 1stappellant was in possession of the stolen items because they were found in his houseand hence the stolen items were in his possession and control. We agree. However, asregards the 2ndappellant, P.W. 5 told the trial court that upon seeing them, the 2nd appellant fled from the house of the 1stappellant and that the 3rdappellant was foundhiding in the 1stappellant’s house. The 1stappellate court found that by their conduct,it can be inferred that the 2ndand 3rdappellants knew that the items in the 1stappellant’shouse had been stolen and had consented to these items being in the 1stappellant’shouse. It is for these reasons that the 1stappellate court found that although none ofthe stolen items were found on the persons of the 2ndand 3rdappellants during thearrest, they were each in possession.

In our view, although both the trial court and the 1st appellate court found the2ndappellant guilty, the only evidence against him was that of P.W.5 who stated thathe saw him running out of the 1stappellant’s house. It was P.W.5’s further evidencethat he did not know the 1stappellant before and he did not know how and where the2ndappellant was subsequently arrested from. He alleged that at the time of fleeing,the 2ndappellant had ‘rasta’ unlike when he saw him clean shaven in court. Noidentification parade was conducted for P.W.5 to identify the person he saw runningfrom the 1stappellant’s house on26thMarch, 2009and given the fact that he did notknow him, we think the evidence was insufficient for purposes of proof beyondreasonable doubt, more so given the fact that the time and place of arrest of the 2nd appellant were not explained.

As regards the 3rd appellant, it was the prosecution’s case that he was found inthe house of the 1stappellant. If this be so, is it that he was in this house from the dateof the commission of the offence (31stJanuary, 2009) until when he was found on26thMarch, 2009? Was he in this house for this long? Can it be said that he was inpossession if the house was not his? Again, we do not think so. Even if the 3rdappellantwas in the 1stappellant’s house for the duration of time between31stJanuary, 2009upto26thMarch, 2009,there was no evidence that he had knowledge of the itemsunlawfully found in the 1stappellant’s house. Section 4 (a) & (b) of the Penal Codedefines possession as follows:

“ S.4 (a) “be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.”

It is on account of lack of proof of knowledge on the part of the 3rdappellant that we find that the conviction was unsafe.

The upshot of the above is that we find that the trial court and the 1st appellatecourt erred in the evaluation and re-evaluation of the evidence. Had they done so, theywould have found that the charge of handling stolen property was not established asagainst the 2ndand 3rdappellants, unlike the 1stappellant whom the stolen items werefound in his house. It is in view of the above, that we affirm the conviction andsentence of the 1st appellant whose appeal is dismissed. The 2ndand 3rdappellants’conviction and sentence are however quashed and set aside. The two are to beforthwith released unless otherwise lawfully held.It is so ordered.

Dated and delivered at Nakuru this 21stday of November, 2019.

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR