[2017] KEHC 56 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

HCRA No. 56 OF 2016

WILFRED KAMAU......................................APPELLANT

VERSUS

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

(An Appeal from the original conviction and sentence of Hon. NS LUTTA (SPM) in CR. CASE No. 551of 2014 at Mariakani Law Courts on 23/05/2016)

JUDGMENT

1. The Appellant was convicted with the offence of stealing goods on transit contrary to section 279 (a) of the penal code and sentenced to 3 years imprisonment on 23/05/2016.

2. The particulars of the charge were that on unknown dates between 19/08/2014 and 24/08/2014 along Mombasa — Nairobi Highway within the Republic of Kenya, the Appellant jointly with others not before court stole 830 bags of borstar polyethylene valued at Ksh. 3,798,799 the property of Bahari Forwarders Limited which were stuffed in a 1 by 40 feet container NO CMAV 4452390 on board truck Reg. No. KBS 274L ZD9810 while the said property was on transit from Mombasa to Nairobi.

3. The prosecution evidence in summary was that on 19/08/2014, the Appellant left Awanad CFS on board vehicle KBS 274L which had loaded goods.

The Appellant was supposed to deliver the goods at Bahari Yard in Mariakani. However, the Appellant took the goods to another yard without authorization. On 24/04/2014, PW2 MUTUA NGUI was given the container and he took it to Nairobi. The consignee of the cargo was Metal Crown Limited.

When the goods were delivered, they found the seal had been tampered with and 830 Borstar polyethylene bags out of the 990 to be delivered to the consignee were missing (only 160 bags were delivered).

PW1 said when the Appellant left the yard at Mikindani he went towards Mombasa instead of going to Mariakani. The goods reached Bahari yard on 20/08/2014 and on 24/08/2014, it was taken to Nairobi where it was discovered that the seal had been tampered with. PW1 said it was discovered in Nairobi that adhesive glue had been applied on the seal and no one could tell that the seal had been tampered with.

4. The Appellant said in his defence that he took the container to summit cove since it was late to go to Mariakani. He said he paid Ksh. 450 for parking and summit cove at Changamwe and the following day on 20/08/2014 he took it to Mariakani where he presented the receipt for parking fee and he was refunded the money.

The Appellant said he was not served with any warning letter for parking the vehicle at summit cove Changamwe.

5. The trial court found the Appellant guilty as charged and sentenced him to 3 years imprisonment.

6. The Appellant is aggrieved by the conviction and sentence and he has appealed against both conviction and sentence on the following grounds:-

(i) That the learned Magistrate erred in law and fact by convicting the Appellant on a defective charge.

(ii) That the learned Magistrate misdirected himself by failing to appreciate the charge was not proved beyond reasonable doubt.

(iii) That the learned trial Magistrate gravely erred in law by finding and holding the Appellant guilty on a balance of probability.

(iv) That the learned Magistrate erred in law and fact to have placed the burden of proof on the Appellant.

(v) That the learned Magistrate erred in law and fact in convicting the Appellant on contradicting evidence.

(vi) That the learned Magistrate erred in law and fact in failing to realize that the prosecution's evidence was contradictory, uncorroborated and with gaping holes so as to sustain a conviction or at all.

(vii) That the learned Magistrate erred in law and fact in solely convicting the Appellant on circumstantial evidence only.

(viii) That the learned Magistrate erred in law and fact in failing to consider the evidence of the Appellant at all.

(ix) That the learned Magistrate erred in law and fact in failing to appreciate the evidence produced by the Appellant in defence of his case.

(x) That the learned Magistrate meted out a sentence which was excessive in these circumstances.

(xi) That the judgment was against the weight of the evidence on record.

7. The Appellant's Counsel submitted as follows:-

(i) That the trial court made a finding that the goods were stolen before the truck left Mombasa and failed to take into account that there were other drivers who had handled the truck before it left Mombasa.

(ii) That the trial court failed to take into account the fact that all the witnesses said the seal was intact and all the tests that were applied confirmed the same.

(iii) The Appellant's Counsel submitted that the Appellant was charged because he parked the vehicle at summit cove at Changamwe instead of proceeding to Bahari Forwarders at Mariakani yet the Appellant had a reason why he parked at summit cove at Changamwe. Further, that the Appellant chose to park at Changamwe because it was unsafe to go to Mariakani at night.

(iv) The Appellant's Counsel also submitted that the prosecution shifted the burden of proof to the Appellant and also relied on circumstantial evidence to convict the Appellant.

(v) Finally, the Appellant's Counsel submitted that the conduct of the Appellant was not consistent with a guilty mind in that he was arrested while on duty.

8. The Respondent opposed the Appeal and submitted as follows:-

(i) That the Appellant failed to follow instructions and took the truck to a yard where he was not authorized to park.

(ii) That the fact that the Appellant was arrested while on duty did not negate the fact that he was involved in the theft of the goods.

9. I have re-evaluated the evidence in this case bearing in mind that I did not have the advantage of seeing the witnesses. This being a first appeal, it is incumbent upon this court to re-analyse and re-evaluate the evidence adduced before the trial court and come up with its own conclusion while at the same time bearing in mind that I did not have the advantage of seeing the witnesses testify. This role is in line with well-known and established principles of law which have been cited with approval in numerous cases. For example, in Kiilu & Another Vs Republic the court citing Okeno v. R held:-

"An appellant on a first appeal is entitled to expect, the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusions; it must make its own findings and draw its own conclusions; only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses".

10. Myfindings are as follows:-

(i) I find that the prosecution relied entirely on circumstantial evidence to convict the Appellant. In the case of REP V. KIPKERING ARAP KOSKEI &ANOTHER 16 EACA 135,the Court held as follows:-

"In order to justify the inference of guilt, the inculputory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt."

(ii) In the case of SAWE —V- REP [20031 KLR 354 ,the Court of Appeal also held as follows on the issue of circumstantial evidence:-

(a) "In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

(b) Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.

(c) The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

(d) Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt."

(iii) In the current case, I find that apart from the fact that the Appellant parked at Changamwe instead of taking it to Bahari Freight Forwarders, there is evidence that the motor vehicle was handled by other drivers between 19th August 2014 and 25th August 2014 when the theft was discovered.

(iv) I find that there is strong suspicion that the Appellant might have taken the vehicle to Changamwe for the purpose of stealing the goods but this suspicion is not backed by evidence and the same cannot be a basis of inference of guilt upon the Appellant.

(v) I find that it is not safe to rely on the evidence on record to convict the Appellant. A scrutiny of the evidence adduced by the prosecution also shows that the weight of the lorry was not disclosed and it is not clear when it was noted that the weight had reduced. The records of the weight were not availed.

(vi) In the circumstances, I find that the conviction herein is unsafe. I allow the Appeal and I quash the conviction and set aside the sentence.

Dated, Delivered and Signed at Mombasa this 2nd October, 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE.