[2017] KEHC 3714 (KLR)

REPUBLIC OF KENYA

IN TH HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 17 OF 2017

[Being from the original judgement and conviction in Criminal Case No. 828 of the Chief Magistrate’s Court at Narok, R. v. Vincent Langat Tanui]

VINCENT LANGAT TANUI...............APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of death contrary to sections 295 as read with section 296(2) of the Penal Code [Cap 63] Laws of Kenya.

2. The state has supported both the conviction and sentence.

3. The appellant was convicted and sentenced on the evidence of being found in possession of a recently stolen property namely a motor cycle registration number KMCU 191N. The defence of the appellant was that the police framed him. The appellant through his counsel has raised 6 grounds of appeal. In ground 1, the appellant has faulted the trial court both in law and fact for disregarding the standard of proof in robbery with violence. The evidence of the complainant namely James Kariuki (PW1) was that he carried on hire 2 pillion passengers one of who he identified as the current appellant. The accomplice of this appellant escaped at the police road block when the police officers who were manning the road block were interrogating the appellant. His further evidence is that this appellant and his accomplice hired him to take them to Cereals estate. Upon arrival at Cereals estate, they asked him to allow them to alight. Apparently, he stopped the motor cycle and the appellant and his accomplice alighted from the motor cycle. They then requested him to turn off the head lights of the motor cycle. He did so. Thereupon, they attacked him with unknown object on the left eye above the eyebrows. As a result, he became unconscious. Upon gaining his consciousness, he found himself in a bush. He also found his mobile phone, cash Sh.800/- and his motor cycle missing.

4. As a result of bleeding too much, he was unable to stand on his feet. He crawled on the stomach to the main highway where George Gitau (PW3) rescued him. He then took him to Narok District Hospital where he was treated.

5. The complainant, upon being examined by Edwin Kiprotich (PW2) who was the Clinical officer at that hospital, found the following:

He found that the complainant looked sickly and pale due to lose of blood.

He also had a cut wound which wound was bleeding, swollen and tender. He had tenderness on the chest wall.

He had cuts on his hands. The middle and ring fingers had fractures with the ring finger having fractures with dislocation. His thighs were bruised. In conclusion, he found that the complainant had suffered injuries that he classified as grievous harm. He then put in evidence the P3 form report as exhibit PMFI 2a and the discharge summary was put in evidence as exhibit PMFI 2 b.

6. It is important to mention that the appellant and his accomplice had hired the complainant on 10/7/2013 at 11. 00 p.m. During the same night on 11/7/2013 at 2. 00 a.m. the appellant was arrested at the road block by No. 20050109020 APC Robert Kipiko (PW5). PW5 was in company of 2 other AP police officers. They stopped the appellant and his pillion passenger as they were questioning the appellant, his pillion passenger escaped. They then arrested the appellant and alerted Narok Police station. It is at that point in time that they were informed of a robbery involving the motor cycle which had been reported at Nairagia Enkare police station. They then took this appellant to police station together with the motor cycle. Thereafter, the appellant was arrested and charged with capital robbery. The motor cycle was produced as an exhibit by No. 362265 PC William Kangogo as exhibit PMFI 1. It is clear from this evidence that the appellant was arrested and charged with capital robbery. It is also clear from this evidence that the motor cycle was recovered within 3 hours of its theft. In other words, the appellant was found in possession of the stolen motor cycle 3 hours following its theft.

7. In the circumstances, I find that this defence that he was framed by PC Joseph Kyalo was rightly disbelieved by the trial court. In this regard, the trial court properly directed itself on the law regarding a person who is found in possession of recently stolen property. It further found that the appellant did not explain his recent possession of the motor cycle other than stating that it was ‘planted’ upon him by the police. In the circumstances, I find that this ground of appeal lacks merit and is hereby dismissed.

8. In ground 2, the appellant has faulted the trial court for finding that the appellant had not been identified but then proceeded to find that the case had been proved beyond reasonable doubt. I have already found that the appellant was found in possession of recently stolen property namely the motor cycle. His explanation that the police planted the motor cycle on him was considered and rightly rejected. I therefore find that this ground of appeal is lacking in merit and is hereby dismissed.

9. In ground 3, the appellant has faulted the trial court for finding that the offence has been proved beyond reasonable doubt, when the charge and the evidence were at variance. In this regard, I find that the charge was framed as alleging that the offence was committed on 10/7/2013. The evidence of the complainant in this regard is that his motor cycle, cell phone and cash Shs.800/- were robbed from him on 10/7/2013. In the circumstances, I find no variance between the charge and the evidence. This ground of appeal lacks merit and is hereby dismissed.

10. In ground 4, the appellant has faulted the trial court in misapplying the doctrine of recent possession in this case. The appellant was found in possession of the stolen motor cycle of the complainant within 3 hours after the robbery. A motor cycle is not property that is capable of changing hands within that period of 3 hours. I therefore find that the doctrine of recent possession of stolen property was properly applied in this case. In the circumstances, this ground of appeal is lacking in merit and is hereby dismissed.

11. In ground 5, the appellant has faulted the trial court for shifting the burden of proof to him. In this regard, I have considered the judgement and I find that the trial court found that the appellant “had no reasonable excuse to be found with the stolen motor cycle. The circumstances of recovery were clear that there was no room for planting of exhibits.”I find that this was a proper direction by the trial court and therefore that court did not shift the burden of proof to the appellant. This ground of appeal lacks merit and is hereby dismissed.

12. In ground 6, the appellant has faulted the trial court for imposing a manifestly excessive sentence. I have considered the mitigation of the appellant that he was a first offender. When he was given an opportunity to mitigate, he did not do so. Instead he attacked the evidence upon which he was convicted. I find that the complainant sustained serious injuries which the examining clinical officer classified as grievous harm. I further find that the complainant became unconscious following the attack by the appellant and his accomplice. In the circumstances, I find that the sentence of death imposed upon him was merited.

13. This is a first appeal court. As a first appeal court according to Okeno v. R (1972) EA 32, I am required to scrutinize the evidence upon which the appellant was convicted and sentenced. I have done so and I find that the appellant was convicted on sound evidence.

14. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

15. Judgement delivered in open court this 13th day of July, 2017 in the presence of Mr. Mbeche holding brief for Ms Wangari for appellant and Ms Nyaroita for the state.

J. M. Bwonwonga

Judge

13/7/2017