[2017] KEHC 1942 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HCCRA NO. 34 OF 2015

STEPHEN NGUGI MWANGI ALIAS UPLANDS ……. APPLICANT

VERSUS

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

(Being an Appeal from the judgment of Hon. C. Ndubi, Ag. SPM in Nkubu SPM Cr.Case

No.1890 of 2011 delivered on 24/05/2013).

J U D G M E N T

The appellant was charged with the offence of stealing by Servant contrary to Section 281 of the Penal Coe. The particulars of the offence were that the appellant and his colleague on the 1st day of November, 2011 at St. Mary’s Secondary School, Igoji within Imenti South District of Eastern Province, jointly being servants to MICHAEL KIARIE GACHUKI stole 1,143,563(One Million and one Hundred and forty three thousand five hundred and sixty three shillings), the property of Michael Kiarie Gachoki which came into their possession by virtue of their employment.

The appellant and his co-accused were convicted and sentenced to serve three years imprisonment each. The grounds of appeal are that:-

1. The prosecution evidence was insufficient.

2. The prosecution evidence did not prove the case to the required standard of proof.

3. The appellant’s evidence was disregarded.

4. The trial court shifted the burden of proof to the appellant against the established tenets of law.

5. The prosecution evidence was circumstantial.

6. The appellant’s mitigation was not considered.

7. The sentence is excessive.

Mr. Ndubi appeared for the appellant. Counsel submit that the prosecution evidence was insufficient to warrant the conviction. The appellant was attacked and robbed of the sale proceeds. They called PW1 on phone and informed him about the robbery. The trial court did not give any consideration to that defence evidence. The investigating officer did not investigate the robbery. The conviction is based on suspicion. The suspicion is that the appellant and his co-accused, having received the sale proceeds, must have stolen the money. Suspicion upon suspicion remain suspicion and can’t lead to conviction.

Counsel further submit that the evidence of PW2 and PW3 did not corroborate that of PW1. Further, the evidence of the two witnesses does not controvert the defence evidence. After the robbery, the appellant went to the nearby Police Station and made a report. Nothing was recovered from the appellant or his co-accused. The appellant was not investigated. A robbery took place and in the process the windscreen of the vehicle used to transport the goods was broken.

Mr. Namiti opposed the appeal. Counsel submit that the evidence was sufficient to warrant a safe conviction. The appellant and his co-accused were entrusted with goods. They were expected back at 5. 00 p.m. They alleged to have been robbed along the road near a quarry in Igoji. PW2 and PW3 worked at the quarry. They heard the vehicle approaching the quarry and thought that the appellant was going to buy ballast. They found the appellants intact. It’s not clear where the robbery took place. The appellant borrowed a phone and called PW1. It is PW1 who told the appellant to report to the Police. The vehicle windscreen was discovered to have been broken from inside

This is a first appeal. The prosecution case need to be evaluated afresh and the court make its own conclusion noting that I make my own conclusion notice that I did not see the witnesses who testified. PW1 KIARIE GACHOKI testified that he is the Manager of Kanini Haraka Enterprises, Meru Branch. On 01/11/2011 he sent the appellant and his colleague to supply good to their customers. The appellant was the conductor of motor vehicle registration number KBN 951F Mitsubishi Lorry. The goods included rice, flour, cooking fat and other assorted items valued at Kshs.1,143,565. He expected the appellant to be back at 5. 00pm. The appellant was sent to Chogoria. It is PW1’s evidence that by 7. 50p.m, the appellant had not returned. He tried to call them on their phones but he could not reach them. At about 8. 15pm he received a call from a strange number. It was the appellant who told him to call them urgently. He called them and was informed PW1 that they had been robbed and were stuck. He advised them to report at the nearby police station.

PW1 further testified that he went to Kiandege Police Station and found the appellant. The vehicle was empty. He saw the vehicle had a cracked windscreen and broken window glass. The appellant told him that they were stopped by armed people who fired at the vehicle. A police Officer informed him that the vehicle had no bullet hole and the appellant’s story was suspicious. The appellant had sold all the items in the vehicle. The vehicle had a safe that was affixed on it. One could only drop money in the safe but could not remove the money.

PW2 ZACHARIA GITARE MUTURI works at a quarry at Igoji. He sells ballast. On 01/11/2011 at about 8. 00pm he was at home. He heard a vehicle approaching and thought that it had gone to collect ballast. He went out to check and saw two people in the vehicle. They told him that the vehicle had entered in a ditch and needed help. Together with other people including PW3, they pushed the vehicle out of the ditch. The appellant and his colleague asked to be assisted with a phone. The vehicle left heading towards Kiadenge area where the occupants said were headed to.

PW3 ROBERT MURIUKI was also working at the quarry in Igoji. He testified that on 01/11/2011 at about 8. 00p.m he was at his house when he heard the sound of a vehicle. The vehicle then stopped. He went and found the vehicle had one of its tyres in a ditch. He saw PW2 and others trying to assist. The driver asked for a phone. He heard the driver saying that that they had been hijacked. The occupants of the vehicle did not tell them that they had been hijacked.

PW4 COSMAS MUSEMBI is a businessman who was based at Igoji. He operates a shop. On 01/11/2011 he received his goods which included rice, fertilizer, cooking fat and wheat flour. The items were delivered by the appellant. He paid Kshs.83,000 for the goods to the appellant and his colleague. The delivery was done at 2. 00p.m. He later heard that the appellant had been hijacked.

PW5 SAMUEL MURUNGI GITONGA is also a businessman with a shop at Nkubu market. On 01/11/2011 he received his goods from Kanini Enterprises sent to him by the salesperson. The items comprised of 20 bags of detergent. He paid Kshs.18,308/- and was issued with a delivery note.

PW6 PC RICHARD OMBUI was stationed at Igoji Police Station. On 011/11/2011 at about 11. 00 p.m the appellant and his co-accused went to the station. The two reported that they were in a lorry registration number KBW 951 F coming from supplying goods when they found people who were armed with weapons. One of the attackers hit the conductor’s window with a stone. They were driven to Kathigiri area where the vehicle’s safe was broken and money stolen.

PW6 booked the report. The stolen money was given as over Kshs.700,000/-. He went to the scene and saw the vehicle. He noted that the window appeared to have been broken from inside and it then fell outside broken. They went to Kathigiri where the safe was alleged to have been broken. There is a quarry at the area. It is his evidence that the quarry workers are available 24 hours as they work in shift. He talked to the workers but they told him that they did not hear any safe being broken. The workers told him that they had met the lorry and they thought they had gone to buy ballast. There was no broken glass inside the vehicle.

In his sworn defence, the appellant’s co-accused SIMON THUO who was the driver testified that they were given goods to go and supply to customers. They collected money for the supplied goods. They were taken to a bush in Igoji. They reported at Nkubu. There were four robbers who showed them guns.

In his sworn defence, the appellant, STEPHEN NGUGI MWANGI testified that they were from Chogoria to supply goods. They were hijacked and they went to report at Igoji. The robbers were on foot and after being hijacked, the robbers drove the vehicle to a bushy area in Igoji and left them in a ditch. Some people helped them out oF the ditch.

The issue for determination is whether the prosecution proved its case beyond reasonable doubt against the appellant. The undisputed facts are that the appellant was employed by the complainant. The appellant and a driver were sent out to supply goods to the complainant’s customers. The appellant and his colleague were duly paid by the recipients of the goods. The money never reached the complainant.

The defence evidence is that the appellant was attacked by robbers on their way back. The cashbox was removed from the vehicle. It is the defence evidence that the robbers took the appellant and his co-workers to a bush in Igoji. They were four. The robbers showed them guns as the vehicle was moving. The appellant’s evidence was that they were hijacked and the vehicle was taken to a bush in Igoji where the robbers left them with the vehicle stuck in a ditch. Some people helped them get out of the lorry from the ditch.

Counsel for the appellant contends that the evidence is circumstantial and that the police failed to investigate the appellant’s complaint of robbery. The record shows that the investigation officer visited the scene. He saw the windscreen of the vehicle had been hit from inside. It is true that in a robbery incident, the robbers may not choose how to scare their victims. However, the circumstances of each robbery has to be evaluated. In this case, the investigation officer was not convinced that there was a robbery.

The evidence of PW5 is to the effect that they expected the appellant back at 5. 00 p.m. He tried to reach the appellant and his colleague on their phones but couldn’t. The appellant did not explain whether their phones were also taken by the robbers. When they reached Igoji, they asked for a phone. It’s not clear as to why from 5. 00 p.m to about 8. 00 pm when the vehicle reached Igoji the appellant could not be reached on phone. The prosecution’s case is not based on suspicion. It is based on the reality that the appellant was given goods to supply. He was given the money and could not be reached on phone. The defence that the appellant was hijacked and taken to Igoji is misplaced by the evidence of PW2 and PW3. These two witnesses heard the vehicle approaching. They thought that it was a vehicle that was going to buy ballast. They live not very far from the quarry. Pw3 lives about 50metres from the main road. PW2’s homes is located at a raised area and could hear the vehicle approaching. It is the evidence of PW3 that the appellant did not inform them that they had been hijacked. PW2 and PW3 did not hear the safe being broken into.

From the evidence on record, it is not established that the appellant was hijacked. The defence evidence did not establish how the vehicle was hijacked. The appellant alleged that the vehicle was shot at. There was no sign of bullet entry on the vehicle. The vehicle was photographed. None of the two occupants of the vehicle was injured maybe by the broken glass. PW2 and PW3 went to attend to the vehicle as soon as it stopped. They did not see any robbers. The appellant did not tell PW2 and PW3 that they had been robbed at the quarry so that the two witnesses could have started looking for the robbers. If the robbery did not take place at Igoji, it is not clear as to how the appellant drove from the scene only to land at a ditch in Igoji. Why didn’t the appellant borrow a phone from the scene if it was not Igoji and call PW1. Definitely if it was not Igoji where the robbery occurred, the appellant could have gone to the neighbours and borrow a phone. That did not happen.

I do find that the conviction is not based on suspicion. The circumstantial evidence irresistibly points to the appellant’s guilt. It is clear that the appellant collected the money. They went somewhere and removed the safe. They decided to drive to a quarry at Igoji in the hope that no one would see them. PW2 and PW3 were at the quarry. They saw the appellant approaching. There were no robbers in the vehicle. It was only the appellant and his colleague.

From the evidence on record, I do find that the prosecution proved its case beyond reasonable doubt. The conviction is proper. The appeal lacks merit and is hereby dismissed.

DATED AND SIGNED AT EMBU THIS …….….DAY OF SEPTEMBER, 2017.

S. J. CHITEMBWE

JUDGE

DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF NOVEMBER 2017.

A.MABEYA

JUDGE