[2022] KEHC 16224 (KLR)

Wamanji v Republic (Criminal Appeal E065 of 2021) [2022] KEHC 16224 (KLR) (Crim) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16224 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E065 of 2021

K Kimondo, J

December 13, 2022

Between

Eric Maino Wamanji

Appellant

and

Republic

Respondent

(Appeal from the judgment in Milimani Chief Magistrates Criminal CaseNo. 388 of 2015 by Z. Abdul, Senior Resident Magistrate, dated 6th May 2015)

Judgment

1. The appellant was convicted for threatening to kill contrary to section 223 (1) of the Penal Code (hereafter the Code). He was fined kshs 200,000 and in default to serve one year in jail.

2. The particulars of the amended charge were that on February 11, 2015 at ring road westlands, Nairobi, he caused Charles Kiprono Kerich to receive a threat to kill him vide the text message below from airtel mobile number xxxxxx registered in the appellant’s name to the complainant’s safaricom cellphone line xxxxx.

3. The offending text message read as follows-It is high time you stop publishing these stupid GDC stories or we silence you once and for all in our own way, kwani SIMIYU ate your mother’s money? He will be in power to stay, he has all the blessings from the house in the hill and you will never fight him even with a million stories

4. The petition of appeal was filed on July 21, 2021. There are seven grounds but I will condense them into four: Firstly, that the prosecution’s evidence was circumstantial and fell short of the required standard of proof; secondly, that there was no proof that that the airtel line xxxxx was registered by the appellant; thirdly, that the prosecution withheld exonerating evidence; and, fourthly, that the appellant’s defence was disregarded.

5. The appellant filed submissions on June 15, 2022 and further submissions on November 1, 2022. In a synopsis, his case is that the prosecution did not prove the charge beyond reasonable doubt.

6. The appeal is contested by the respondent. The respondent’s submissions are dated October 23, 2022. It is contended that all the elements of the offence were established and that the appeal is hopeless.

7. On November 24, 2022, both learned counsel for the appellant and respondent informed me that they were relying wholly on their submissions.

8. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic[1972] EA 32.

9. The complainant was the editor of star newspaper. On the material day, he received two text messages on his cellphone number xxxxx . He also got the messages on his other line xxxxx . The messages originated from an airtel number xxxxx . He did not know the sender. The first was a short text message requesting him to call back. He did not do so.

10. The second message is the one I set out verbatim at paragraph 3 above. He viewed it as a serious threat and reported the matter to parklands police station. He left his phone and sim card with the police. He saw the appellant for the very first time in the dock.

11. Those two messages together with a certificate under section 65 (8) of the Evidence Act were produced by police constable Kisavi (PW2). The messages were sent at 4:14 pm and 4:16 pm respectively on the material day. He printed them out from mobile phone, nokia 305 IMEI xxxxx , which was paired with the complainant’s line xxxxx .

12. PW3 was Police Constable Kibet Bor. He received the complaint and commenced investigations. He met the appellant at the Geothermal Development Company (hereafter the GDC) offices in South C. His material evidence was as follows-We established that the phone he [appellant] was using IMEI xxxxx paired with the IMEI number that had been used to send the message and also similar to the ID number from safaricom. Our further investigation established that the phone had been given to Eric [appellant] who was an employee.

13. PW3 also forwarded the ID number xxxxx to Safaricom who confirmed that it was used to register line xxxxx in the name of Eric Ndungu. Further inquiries at the office of registrar of persons showed the ID belonged to Eric Maino Wamanji Ndungu (the appellant). He then called the safaricom number because the airtel one was not going through. The call was received by a person who identified himself as Eric (the appellant) and who was working with the GDC.

14. When cross-examined further, PW3 confirmed that he neither recovered the sim card for line xxxxx which sent the offending message nor find the message in appellant’s handset. He stated-IMEI number which sent the message is similar to the one in Exb 6 – xxxxx . Exb 6 is not a dual sim handset. I did not ask for particulars of Eric Wambua. I used the ID number to get the details of the person. The handset (Exb 6) belonged to GDC. It was issued to accused who was an employee on August 11, 2014. Serial number R51F4044TEK of Exb 6. R51F4044TEK is the serial number from the letter by GDC. It is the official phone accused had been issued by the employer. IMEI number not indicated in the letter by GDC.

15. Corporal Machira (PW4) testified that the airtel line xxxxx was registered in the name of Eric Wambua, ID number xxxxx on the date of the offence at about 2:14 pm.

16. Job Maina (PW5) is a registrar of persons. He confirmed that ID number xxxxx belongs to the appellant

17. I have then considered the defence by the appellant (DW1) and the testimony of his two witnesses. At the material time, he was the deputy manager, corporate communications & marketing. He denied registering the airtel line or sending the offensive message. In the material part, he stated as follows-He [PW3] had a piece of paper print out which contained a message. It was a statement claiming that I had sent a text message using my phone to a mr Kerich. It also contained a cellphone number that had sent the message. I told the officer that the number was not mine. It was an airtel phone number.I saw something written nokia. When I indicated the phone number was not mine, Kibet sunbed [sic] a number and said it was the IMEI number of the phone that had been used to send the message.He asked me to dial a code on my phone which produced the IMEI number. He wanted to confirm the IMEI number he had written on a piece of paper. There was a discrepancy on the IMEI numbers and I raised the issue.Kibet said the issue would be sorted out by ICT at police station and they requested me to accompany them. At that point, Kibet requested me to hand over my phone which I obliged and I requested that it be registered at the legal department.We went and informed the company secretary. The sim card remained in the phone. My sim card was a safaricom xxxxx. That was my personal number. The handset was purchased by my employer for official use. I signed for the phone-samsung galaxy s5 serial number R51F4044Txxxxxxx.

18. The appellant’s first witness was Kevin Mburu (DW2). He said he held a certificate in ethical hacking. His material evidence was that messages on a cellphone can be manipulated; and, that one requires to study the data print-outs from the sender’s and recipient’s service providers in order to verify the contents of a message. That opinion was supported by the appellant’s second witness, Conrad Makatiany (DW3).

19. I take the following view of the matter. Firstly, it is not true that the evidence tendered by the appellant and his two witnesses was disregarded. The learned trial magistrate simply did not believe it. At pages 3, 4 and 5 of her typed judgment, she dealt at length with that evidence and found it to be bogus.

20. From my re-evaluation of the evidence, I find no sound basis for the allegation that the prosecution withheld exonerating evidence. I am also alive that under section 143 of the Evidence Act, no particular number of witnesses is required to prove any particular fact. In this case however, the appellant called two witnesses to disprove the digital evidence relied on by the state. That ground of the appeal also fails.

21. Section 223 (1) of the code provides that-Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.

22. From the text message that I quoted at paragraph 3 of this judgment, I readily find that the words: It is high time you stop publishing these stupid GDC stories or we silence you once and for all in our own way; in their natural and ordinary meaning; and, within the context of stopping the complainant from publishing unfavourable media, comprised a clear threat to kill.

23. The words were conveyed in writing via a text message from airtel number xxxxx directly to the complainant’s phone. I concur with the trial court that all the elements of the offence were thus present.

24. The key question then is whether it was the appellant who sent the offensive message. The learned trial magistrate reached the following conclusion-The accused person maintains his innocence. In his defence hearing, he stated that he is a communication officer – deputy manager co-operate [sic] communications and marketing. He confirmed having worked at the Geothermal Development Company (GDC) for a period of 11 years since 2009. The offence was committed on February 11, 2015 when he was still an employee of GDC. Coincidentally; this is the same day that the airtel line was registered. The offensive message was also in respect to GDC. Another coincidence is that the accused person’s ID number was used to register the airtel line under Eric Wambua.

25. The two sets of submissions by the learned counsel for the appellant, mr T Kamwaro, are devoted largely to the view that there was no evidence to show that the appellant was the subscriber to the airtel line; or, that he sent the offensive message.

26. I agree with learned counsel that the trial court relied on circumstantial evidence. But circumstantial evidence is also good evidence. The only caveat is that to convict on it, the entire chain must be complete and point to the guilt of the accused “incapable of explanation upon any other reasonable hypothesis than that of his guilt”. R v Kipkering arap Koske & another 16 EACA 135 (1949). The learned trial magistrate was well aware of it and cited the precedent in her decision.

27. Obviously, the appellant did not wish to leave a digital trail linking him to the offensive message. But he failed to obliterate some tell-tale signs which cumulatively connect him with the offence. Firstly, he admitted that he was employed by the Geothermal Development Company (GDC) as the Deputy Manager, Corporate Communications and Marketing. He held the rank on the date of the offence. He also admitted in cross-examination that dr Silas Simiyu was the company’s CEO at the time. It is not lost on me that the tenor of the offensive message was to curtail any further bad press for GDC and a mr Simiyu.

28. Secondly, the airtel number xxxxx was registered on the date of the offence at about 2:14:45 pm. and used to relay the threats the same afternoon. True, the sim card was never recovered. It is also true that it was registered in the name of Eric Wambua and has since been allocated by the mobile company to a new subscriber. However, the airtel line was registered using the appellant’s ID number xxxxx .

29. Thirdly, I am satisfied from the evidence of PW3 that the sim card was deployed in the appellant’s cellphone (exhibit 6) identified by IMEI xxxxx . That cellphone was also using a safaricom number xxxxx belonging to the appellant. The safaricom IMEI is similar save that the last digit is 0 not 8.

30. Fourthly, the same cellphone samsung galaxy s5 serial number R51F4044TEK+xxxx belonged to GDC and had been allocated to the appellant. He was using it at the time of the offence and was found with it in his office by PW1 and PW3.

31. Fifthly, by virtue of his office as the deputy manager, corporate communications and marketing, it is not far-fetched that he was concerned about the bad press for the GDC or its CEO, dr Silas Simiyu. I have kept in mind that the complainant was the editor of the Star newspaper.

32. Like the learned trial magistrate, I find that the entire chain is complete and points to the guilt of the accused “incapable of explanation upon any other reasonable hypothesis than that of his guilt”. R v Kipkering arap Koske & another [supra]. It follows as a corollary that the appeal on conviction is dismissed.

33. I will turn briefly to the sentence. The offence is grave and attracts a jail term of up to ten years. The appellant was fined kshs 200,000 and in default to serve one year in jail. It was a slap on the wrist. But seeing that there is no appeal on sentence or any cross-appeal, I will let the matter rest.

34. The upshot is that the entire appeal is devoid of merit and is hereby dismissed.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF DECEMBER 2022. KANYI KIMONDOJUDGEJudgment read virtually on Microsoft Teams in the presence of-Appellant.Mr T. Kamwaro for the appellant instructed by Kamwaro & Associates Advocates.Mr A. Otieno for the Republic instructed by the Office of the Director of Public Prosecutions.Mr E. Ombuna, Court Assistant.