[2004] KEHC 2539 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.743 OF 2000

(From Original Conviction and Sentence in Criminal Case

No.565 of Principal Magistrate’s Court at Naivasha.)

SIMON KURIA KIMANI………………………………..APPELLANT

VERSUS

REPUBLIC………………………………………………RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 744 OF 2000

JOSEPH MBUGUA KARANJA ………………..……. APPELLANT

VERSUS

REPUBLIC …………………………………………… RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 745 OF 2000

JOHN NJAU KARIUKI …………………..………….. APPELLANT

VERSUS

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

J U D G M E N T

The appellants were arraigned in the Senior Principal

Magistrate’s Court at Naivasha and charged with 2 counts of

robbery with violence contrary to Section 296(2) of the Penal

Code, 3 counts of kiosk breaking and committing a felony

contrary to Section 306(a) of the Penal Code. The 1st appellant

faced a further count of stealing from a locked motor vehicle

contrary to Section 279(g) of the Penal Code. Following a

lengthy trial in which 10 prosecution witnesses testified the

appellants were convicted on counts 1 and 2 and subsequently

sentenced to suffer death. The appellants were also convicted

on counts 3, 4 and 5 relating to kiosk breaking and

committing a felony therein. They were each sentenced to 6

years imprisonment. The 1st Appellant was found guilty of the

offence of stealing from a locked motor vehicle (count 6) and

sentenced to a prison term of 3 years. The sentences were to

run concurrently. It is against these convictions that the

appellants lodged their appeals separately on the 7th July,

2000. The three appeals 743/2000, 744/2000 and 745/2000

were subsequently consolidated and heard as one.

In their grounds of appeal, the appellants jointly

complained that the Learned Magistrate erred in law and fact

in convicting them on the charge of robbery with violence in

the absence of evidence of identification, that the Learned trial

Magistrate applied albeit wrongly the doctrine of recent

possession, that the evidence of recovery of the alleged items

stolen from the kiosk and the locked motor vehicle motor

vehicle was doubtful and unsatisfactory. Finally that the

Learned trial Magistrate failed to consider the Alibi defences

put forth by the appellants.

At the hearing of this appeal 1st and 3rd appellants who

were not represented by counsel put in written submissions in

support of their appeals Mr. Gichuki learned counsel who

appeared for 2nd appellant preferred oral submissions.

However, before he could commence his submissions, Mr.

Monda, Learned State Counsel indicated to us that the state

was conceding to the appeals in so far as they related to the 2

counts of robbery with violence.

The reasons the state advanced for conceding to the

Appeal that, is that there was no Identification Parade carried

out the complainants testified that the appellants were

strangers to them. Consequently, in the absence of an

Identification Parade the Learned trial Magistrate could not

have placed the Appellants at the scene of the crime. We may

go further and state that even if the identification parade had

been conducted we are satisfied that it would not have

advanced the prosecution’s case as the circumstances

obtaining during the commission of the crime did not favour

any positive identification. PW1 conceded that when the

robbery was in progress the robbers had put a blanket over

her face. It is only after she removed the blanket and one of

the robbers by sheer coincidence focused the torch light on the

1st appellant that she was in a split second able to identify the

1st Appellant. This is the only evidence of identification. The

other appellants were never identified. The evidence on

identification was of the poorest type. We therefore agree with

the Learned State Counsel that in the absence of any material

evidence it was unsafe to convict the Appellants of robbery

with violence and we so hold. Mr. Monda Learned State

Counsel submitted however that he would be supporting the

conviction and sentence on the alternative counts.

The 1st and 2nd appellants in view of the states’ position

chose to rely on their written submissions. However, counsel

for the 2nd appellant submitted that there was no sufficient

evidence on record that could have led to the Learned

Magistrate to convict the appellant on counts 3, 4 and 5. He

submitted that in order to prove these offences it was

incumbent upon the prosecution to adduce evidence that the

kiosks were broken into and produce as exhibit implements

used. The prosecution also ought to have prepared and

produced as exhibit an inventory of the items stolen. Finally

he submitted that the nature of the goods were the kind of

goods ordinarily found in kiosks so that in order for them to

have been positively identified, it was necessary for them to

produce receipts for the purchase of the said goods.

In response to the appellants’ submissions the Learned

state counsel submitted that he supported the conviction and

sentence on the alternatives counts of handling suspected

stolen property; and count 6 where the 1st appellant is charged

with stealing from a motor vehicle. The appellants were found

in possession of the goods that had been stolen. Indeed the 1st

and 2nd appellants assisted the police officers in making the

recoveries. They also led the police officers to the house of 3rd

appellant where further recoveries were made. The Learned

State Counsel further submitted that nowhere in the record

did the appellants claim ownership of the recovered items. In

the circumstances the only reasonable presumption that can

be drawn was that the goods were not owned by the appellants

and since they had been allegedly stolen, a fact that was not

disapproved, the reasonable presumption drawn by the

Magistrate that they were in possession through stealing is

reasonable. Consequently they were properly convicted as

their defences were mere denials. The Learned State Counsel

invited us to alter the charge in respect of the alternative

counts and convict them accordingly pursuant to the

provisions of Section 354(3)(iii) of the Criminal Procedure

Code.

To our mind what calls for determination in this appeal

in the light of the position taken by the state is whether the

property itemized in the charge sheet were stolen? If so by

whom? Did the property belong to the complainants, and was

whoever was found in possession of them dishonest in such

possession.

The alternative charge to count one relates to John Njau

Kariuki the 3rd Appellant. He is alleged to have been found in

possession of one wall clock the property of Veronica Wairimu.

It is alleged that he dishonestly retained the same knowing or

having reason to believe that it had been stolen. In her

testimony PW1 stated that thugs who invaded her house stole

a television, wall clock, battery, bed cover. bag, kiondo, radio

gram and a radio cassette. She made a report to the police the

following day. After sometime, the television, radio gram, wall

clock, watch and radio cassette were recovered and she

identified at the police station. The evidence of recovery of the

said items was given by PW6 who testified that appellants 1

and 2 took them to the house of appellant 3 and upon

searching the house a wall clock was recovered. One panga,

three pairs of sandals, one torch 4 pieces of panga soap, one

geisha soap, a hammer, handsaw, 2 sufurias and one master

key were also recovered. The evidence of PW6 was further

supported by the evidence of PW7 regarding how the property

aforesaid were recovered from the house of appellant 3. In

cross-examination of this particular witness by the 3rd

Appellant it emerged that he had even approached the police

officers to bribe them with a view to having the co-appellants

released. The witness confirmed that the wall clock was found

in the 3rd Appellants house. The 3rd Appellant in his defence

did not deny that the wall clock was found in his house nor

did he claim ownership. Indeed in the course of the hearing

when the prosecution applied for the property to be released to

the Complainant, the 3rd Appellant did not object. Against this

evidence all the 3rd Appellant could do is to state in his

submissions that his arrest and subsequent search of his

house was not supported by any document like the entries in

the OB. There was also no independent evidence to confirm

what PW6 and PW7 said as they were all police officers, and

that the possibility of being framed was not ruled out. On the

evidence on record, we do not find the 3rd appellant’s

contention valid. He did not deny that his house was

searched. Neither did he suggest in his evidence why there

was a possibility that he was framed up. Nor did he say that

the house is occupied by other person or person who could

have had the wall clock in that house. On the evidence we

find that the wall clock was found in the house of the

appellant 3. The wall clock did not belong to him and

consequently it must have been stolen from PW1. The 3rd

Appellant in the process dishonestly retained it.

As regards the alternative count to the 2nd charge of

robbery with violence it is alleged that the appellant 3 was

similarly found in possession of a panga, three pairs of

sleepers the property of Mary Njeri Mwaura knowing the same

to have been stolen or unlawfully obtained. The Complainant

herein was PW2. On the night of 14th March, 2000 some men

forced themselves into her house and menacingly demanded

money from her whilst claiming that they were police. They

forcefully took a panga, packet of cigarettes, six torches, three

pairs of sandals, 4 bars of soap, one geisha soap. The

evidence of how this items were recovered in the possession of

the 3rd Appellant was once again given by PW6 and PW7. The

3rd appellant did not claim ownership of the items. The

Complainant clearly identified the items as hers. The

appellant in his defence did not deny that the items were

recovered from his house. Since the house was only occupied

by the 3rd Appellant the possibility that the items belonged to

someone else and or that they were planted on him is remote.

We hold that the circumstances under which the items were

recovered on the 3rd appellant were such as to meet the

ingredients of the alternative facing the appellant.

Regarding counts 3, 4 and 5 in the charge sheet, we are

satisfied on the evidence on record that the conviction was

sound. Although there is no direct evidence linking the

appellants to the spate of kiosk breaking and theft therefrom,

there is however ample circumstantial evidence linking them

to crime, as the Learned State Counsel submitted. Appellants

2 and 3 led the police officers to make the recoveries of the

goods that were stolen from these kiosks. There were

recoveries made from the house of the 3rd appellant. The

appellants also took the police to Gilgil Township in the house

of one Mathenge where some properties stolen as foresaid were

recovered – television, battery, crate of empty bottles of soda,

one lantern lamp and 2 loudspeakers. Thereafter the

appellants then took the police officers to Diatomite where

further recoveries were made with respect to assorted kiosk

goods – salt, rice, wheat flour, blue band etc. Sometimes later

the 2nd appellant took the police officers to Nyahururu town at

Chekerena area where the radio gram and Trident radio

cassette were recovered respectively. All the items which were

recovered as aforesaid were all positively identified by the

complainants as being the items that were stolen from the

kiosks when they were broken into. All the appellants in their

defences never claimed ownership nor deny the mode of

recovery.

It is trite law that where there is evidence that the

accused person is found in actual possession or has, shortly

after robbery sold one of the items stolen during the robbery,

he is deemed to be in recent possession of the stolen item and

consequently to have committed the crime (see: CRIMINAL

APPEAL NO.111 OF 2002 – PETER KIMARU MAINA V S.

REPUBLIC).The circumstances of this case are on all fours

with the aforesaid authority. In the circumstances we are

convinced that the appellants were properly convicted on

counts III, IV and VI.

We finally come to count IV. This relates to 1st appellant

alone. He is alleged to have stolen from a locked motor

vehicle. The items stolen were a battery, car speakers all

valued at Kshs.6,600/=. PW10 the complainant testified that

he had locked his motor vehicle and parked it at a petrol

station. The following day he found the bonnet had been

forcefully opened. A speaker, car radio and battery were

missing. Subsequently the items were recovered. The

speakers and the motor vehicle battery were recovered from

one Mathenge. The house of Mathenge was pointed to the

police by the appellants. Mathenge himself testified and

pointed out appellants 2 and 3 as the ones who brought some

items in a sack and a crate of soda and requested him to keep

them. The battery which was established belonged to the

complainant’s motor vehicle was subsequently recovered from

the said Mathenge in the presence of appellant 2. 2nd

Appellant did not claim ownership nor dispute the series of

events leading to the recovery of the items. Applying the

principles enunciated in the aforesaid decision of Peter Kimani

Maina we hold that the learned Magistrate was right in

convicting the appellant.

In the result we dismiss the appeals on conviction on

counts III, IV, V and VI. The Learned State Counsel has

submitted that convictions on the 2 counts of robbery with

violence cannot be sustained on the evidence on record. We

agree and allow the Appeal to that limited extent. We however,

invoke the provisions of Sections 354(3)(iii) and convict 3rd

appellant of the alternative counts of handling stolen property

contrary to Section 322(2) of the Penal Code.

As regards sentence, we note that the appellants were

sentenced to 6 years imprisonment in respect of the 3rd, 4th

and 5th counts. The 1st appellant was further sentenced to a

period of 3 years imprisonment on count 6. The sentences

were to run concurrently. The appellants have prayed that the

above sentences are harsh and excessive. We note that the

punishment for the offence of kiosk breaking and committing

a felony therein is seven years together with corporal

punishment. By the time the sentence was imposed the

appellants had been in custody for sometime. If this fact had

been taken into account perhaps the learned Magistrate would

have imposed a lesser imprisonment term. We would

therefore review downwards the imprisonment term imposed

on each appellant to the period so far served by each

appellant. Having found the 3rd appellant guilty of the two

counts of handling stolen property contrary to Section 322(2)

of the Penal Code, we impose a sentence equivalent to the time

he has so far served in the prison custody on each count.

Both terms to run concurrently.

In the result the appellants and each one of them will

forthwith be released from prison, unless otherwise lawfully

held.

Dated and delivered at Nairobi this…………day

……….…2004.

M.S.A. MAKHANDIA

AG. JUDGE

L.K. KIMARU

AG. JUDGE