The Appellant Hezron Maronda Omangi was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code.
The particulars were that on 30th October 2022 at Birongo market in Kisii Central Sub-County within Kisii County jointly with others not before court, while armed with crude weapon namely panga and metal bar robbed Amos Nyatangi Onchiri Kshs. 33,607/=, one mobile phone make Itel A24 valued at Kshs. 7,000/= and immediately before or immediately after the time of such robbery used actual violence to the said Amos Nyatangi Onchiri.
The Appellant was also charged with the offence of grievous harm in the 2nd count contrary to Section 234 of the Penal Code.
The particulars were that on 30th October 2022 at Birongo market in Kisii Central Sub-County within Kisii County jointly with others not before court, while armed with crude weapon namely panga and metal bar unlawfully assaulted Lameck Okindo Nyangweso occasioning him grievous harm.
The Trial magistrate upon consideration of the evidence 7 prosecution witnesses and the Appellant’s sworn statement in defense found the Appellant guilty and convicted him. The Appellant was subsequently sentenced to serve. TEN (10) YEARS imprisonment, to run from 04/11/2022 when he was arrested.
The Appellant was aggrieved by the conviction and sentence and he appealed against the same vide Memorandum of appeal date 12th February 2024 on the following grounds:
1. The Learned trial Magistrate erred in fact and law in convicting the Appellant under count 1 of the offence charged, whereas the essential ingredients of the offence were not proved by the prosecution beyond reasonable doubt.
2. The Learned trial Magistrate erred in fact and law in failing to find that the prosecution evidence was insufficient to sustain the conviction and sentence and by convicting the Appellant against the weight of the evidence adduced
3. The Learned trial Magistrate erred in fact and law in analyzing and/ or evaluating the prosecution’s evidence separately, forming a considered opinion/impression thereof and then laying the burden on or dispelling the pre-meditated impression upon the Appellant contrary to the established principle in criminal law, which casts the burden of proof upon the Respondent.
4. The Learned trial Magistrate erred in fact and law in failing to find that the prosecution’s evidence was riddled with massive gaps. insufficient evidence, contradictions and inconsistencies that could not sustain a conviction.
5. The Learned trial Magistrate erred in law and fact by failing to consider the mitigation adduced by the Appellant.
It is proposed to ask the court for orders THAT:
a. The appeal be allowed
b. Judgment on conviction on count 1 of the offence charged and the sentence by the trial magistrate be set aside and/ or quashed.
PW1 Amos Nyatichi Onchiri testified that he was a Fuel Attendant at LOAMU ENERGY PETROL STATION in Birongo and that Hamed Harron was the Manager. He said that he was on shift at 3.50 Pm on 30/10/2022. He said that Lameck was the Security Guard at the petrol station. He said that at11.50 Pm, there was a Power outage and as they were going to switch on the generator, he saw around 5 people run towards the station. That he used the torch on his mobile phone and saw the men were in police uniform so he relaxed. That the men ordered them to lie down and took the strings on his jacket which they used to tie him. That they took his mobile phone make ITEL A24 and also took the panga that Lamech had. That while one of them tied PW1 another man took away money from his pocket. He said the money taken was proceeds for the evening proceeds totaling to Kshs. 33,000/=. PW1 said that the men hit him on the fore head. That he then managed to run away to his sister’s house, 200 metres away and he left the others behind at the Station. He said the incident happened when there was a power outage. PW1 said that the only source of light he had was from his mobile phone. PW1 said he went to hospital for treatment. He identified P3 Form which was filled upon his treatment.
That two days later he tried to call his number (0740626071) from the stolen phone and when the call went through a male voice picked the call and he was in shocked and he hang up.
That on 04/11/2022, his sister Phane Monchari informed him that someone had gone to withdraw money from her MPESA shop using his MPESA line and presented a National ID using his sister’s (Zipporah Nyatangi) ID number. The man had given all the said ID number to process the transaction.
PW1 said he had not replaced his line at the time. That his A/C had Kshs. 240/= and the man was arrested at Phane’s MPESA Shop. That he went and saw him. He said it was the Accused herein. (Points at him). That he had an Itel phone with IMEI No. 354548109716365, black and orange in colour – PMFI 2. PW1 said that due to the darkness he was unable to identify any of the assailants and he had not seen the Accused person before.
PW1 said the Itel phone recovered was not his but the Safaricom SIM CARD was his. He said the phone had 2 Safaricom sim cards (PMFI 3(a) & (b) and 1 Airtel sim card (PMFI 3(c). He identified the black and white jacket string (PMFI 4) that was used to tie his hands during the incident.
When the Appellant cross examined PW1 he said that he did not see the Appellant during the attack and he did not see the person who tied him. He also said that the assailants stole Kshs. 33,000/= from his pocket although he had not recorded this in his statement. He said that his SIM CARD was not secured with a PIN and he did not know how the Appellant obtained his MPESA PIN. He said he had saved the ID Number on his phone. He said he ran away and left the assailants at the station. He said he was with LAMECK at the station. He also said that he did not report the matter to the police the same evening. He said he was rushed to hospital and the Manager was notified of the attack.
In re – examination by Mr. Kaino PW1 said that he knew the amount stolen from him after the Manager reconciled the A/C. He said that he did not give out his MPESA PIN.
PW2 Ahmed Hassan Khalif the Manager at Loamu Energy Petrol Station in Birongo testified and said he knew Amos Nyatangi (PW1) who was employed as a pump Attendant.
That on the night of 30/10/2022, he was on duty with Lameck as the Security Guard when at around midnight he received a call by a neighbour lady one Ziporah Mobisa who informed him that the Petrol Station had been attacked.
He rushed to the scene and saw blood stains. He said the 2 employees had been rushed to hospital. PW2 reported the matter to the police. He said he also saw Lameck’s jacket at the scene. That the 2 reported to him that Amos had lost Kshs. 33,607 and his mobile phone. That when he reconciled the accounts for the sales conducted by Amos that evening, he confirmed the amount stolen. He identified the Daily Litres and cash analysis sheet – PMFI 5.
That later he learnt that one suspect had been arrested using Amos’s SIMCARD while withdrawing money from his mobile number 0740626071. This was Amos’s mobile number that was known to him but he did not see the suspect. He said Amos’s sim was registered in the name of his sister.
In cross examination PW2 said that he got to the petrol station at around 12.30 am and there was no one at the scene. He said that he stayed nearby. He said he did not touch Lameck’s jacket and it was not recovered by the police.
PW3 Lameck Okindu Nyangweso testified that he was a Security Guard at LOAM PETROL STATION. He said that on 30/10/2022, at around 6 Pm he reported to work and that Amos Nyatangi the fuel attendant was on duty with him. That at midnight he was inside a Nissan matatu that was parked at the Petrol Station when lights went off. That he called Amos and asked him to switch on the Generator. That he stepped out of the motor vehicle and they were attacked by around 4 men who had spotlights. That he ran away and hide and when he realized that the 4 men were in police uniform, he went back to the Petrol station. They asked him why he had run away and they were ordered to lie down. That Amos obeyed and lay down. That one of the attackers stepped on his head and hit his head on a stone and he was injured.
That when he decided to run away one of the attackers hit him on the head as he fled and left Amos behind. PW3 called for help from neighbours. When they went back to the scene, the attackers had left.
That he was taken to Kisii Teaching and Referral hospital where I was admitted for 7 days and a P3 form was issued and filled (PMFI 6). PW3 said nothing was stolen from him.
The attackers had metal implements which they used and inflicted injuries on the left and right side of his head. That he saw the attackers when the torch was shone on him. PW3 later recorded his statement. He said he did not know the Accused person.
In cross examination PW3 said that the assailants were of different heights and were dressed in police uniform. That he thought they were officers on patrol when the lights shone on them and that is why he went back. That one of the men removed his black jacket and another stepped on his head. PW3 said his jacket was recovered at the scene.
PW4 PHANE MONCHARI testified that she lived in Birongo and ran an MPESA shop. That on 31/10/2022, her brother Amos Nyarangi informed her that he had been attacked while at work at LOAM Petrol station. That he went to her house past midnight and was bleeding from the forehead. PW4 said that her house was ½ km away and that her husband took her to the hospital. That on 03/11/2022, while at her MPESA shop, she received a client whom she identified as the Accused.
That the client withdrew Kshs. 200/= and the name that appeared was Zipporah Nyarangi the name of her elder sister. She said that line was registered using her ID. She said Amos had lost a mobile phone with the line registered in her sister’s name. That she called her husband, Rogers Ongagi to the shop without alerting the accused.
That when her husband arrived restrained the client who said that the line belonged to his cousin. Thereafter he claimed he picked the line in the bushes. He again changed to say he had picked it from the police line. PW4 said the accused did not have a National ID.
He withdrew money and gave me an ID number for the said transactions. He claimed he had used his cousin’s (Elizabeth) to withdraw the money.
That before the incident, the same number had called and tested her (on 02/11/2023) to send him money. That she told him she did not have money. That the accused gave her 0796089997 and ID No. 2334441 so that she could send money to that number.
PW4 said the Accused was unknown to her but when she saw the number, she recognized it. That she tried to sweet talk him to identify himself but he failed to. That she was surprised that the same person went to withdraw money from her MPESA shop. She said that it was purely coincidental that the accused went to her Mpesa shop. That they called the police from Birongo police station who arrested him.
In cross examination, PW4 said that the accused said that Zipporah had sent him. She said that she was not aware that Amos and the accused were friends. She said the accused claimed Zipporah was his cousin but that he went by himself and found her alone. PW4 said that the accused called her on 02/11/2022 at night and on 03/11/2022 before he went to the shop.
PW5 Rodgers Oira of ID No. 29384281testified that he lived in Birongo and was a businessman. That on 04/11/2022 he was asleep in the house when his wife who was in the shop informed him that someone had come to withdraw money using Amos’s number but did not have an ID.
That he went round and restrained the man who claimed he had picked the line at the police line. He said they called the police who went and arrested him.
PW5 said he knew the number was being used by his brother in-law, Amos who had reported the line missing in a robbery on 30/10/2022.
PW5 identified the accused as the man who went to the shop. He said the accused was unknown to him before.
He said Amos lived with him and PW4.
PW6 Scholastica Okoth a Clinical Officer at Iyabe Sub-County Hospital testified that he had come to court on behalf of Mr. Daniel Nyameino a Senior Clinician at Kisii Teaching and referral Hospital. He said he had worked with Mr. Nyameino for 13 years when he worked at Kisii Teaching and Referral hospital and he knew his handwriting and signature.
He said that on 15/11/2022, Mr. Nyameino examined one Lamech Okindu Nyangweso under OPD No. 065/683/2022 who had history of assault on 31/10/2021. That the patient had 2 stitched cut wounds on the scalp right parietal occipital wound measuring 7cm long, a parietal swollen cut measuring 3cm. That the patient had bruises on the upper limbs. Injuries were around 2 weeks old probably caused by a blunt and sharp object.
That a CT scan of the head showed an acute right frontal temporal subdural haematoma and comminuted parietal displaced skull fracture, right occipital mastoid linear fracture, right parietal and temporal skull haematoma.
That the patient was given Anti – convulsants and Tetanus injection. The injuries were assessed as Grievous harm. PW6 produced P3 Form as Pexh. 6 and outpatient Card as Pexh.7.
PW6 also produced P3 Form for Amos Nyarangi which was filled on 15/11/2020 under OPD No. 065684/2022 with a history of Assault on 31/10/2022.
He said Amos Nyarangi had tender healing abrasions on the head, pink in color, probably caused by a blunt object around 2 weeks old.
Injuries were assessed as harm. P3 form signed by Mr. Daniel Nyameino on 15/11/2020 was also produced as Pexh.1. Outpatient Card was also produced as Pexh. 8.
PW7 No. 239361 IP George Thiong’o attached to DCI Kisii said he was the Investigating officer. That on 31/10/2022, he was at the office when the DCIO called and informed him about a robbery with violence matter at Birongo area. That he called several officers and proceeded to Birongo centre where he met IP Robi the Investigating officer Birongo Police post who led them to LOAMU Petrol station where they met the Manager, Ahmed Hassan.
The Manager informed them that on 30/10/2022 at midnight the Petrol Station was attacked by men wearing police uniforms and injured the fuel attendant, Amos and the guard, Lameck Okindo who were hit on the head. That Amos had lost the evening sales of Kshs. 33,000/= and his mobile phone make ITEL which had a SIM CARD with Number 07 40626071 registered in the name of Zipporah Nyatengi, That Amos went to his sister’s house and he was taken for treatment. PW7 proceeded to Kisii Teaching and referral Hospital to visit Lameck Okindo who was at the Emergency Room and was in a lot of pain.
That on 04/11/2022, at 10 am, IP Robi called to inform him that they had arrested Hezron Maronda in possession of the lost SIM CARD. That he had presented himself to DAWAKS Holdings Ltd MPESA Shop and withdrew Kshs. 200/=. The attendant, Phane Monchari a sister to Amos, realized that Zipporah Nyatangi was the registered name of the number used for withdrawal.
That she asked Hezron for the ID and he gave ID No. 38821626 which belonged to Zipporah Nyatangi. That Phane called the husband who questioned the suspect who had no good reasons to have the SIMCARD leading to his arrest.
That he interrogated Hezron who could not explain how he came by the SIMCARD. PW7 recovered an ITEL phone (PMFI 2) with 3 SIMCARDS – 0796089997, 0754403376 and 0740626071 belonging to Amos. PW7 also recovered a metal bar (PMFI 9) from the crime scene.
He charged the Accused with Robbery with Violence. The amount reported stolen was contained in the records of the Petrol station which was produced as PEx 8. He also produced records for withdrawal of Kshs. 200/= by 0790626071 Ex P 10. PW7 produced:
(1) Itel phone – Pexh.2.
(2) 3 SIM CARDS – Pexh. 3(a) – (c)
(3) Daily cash Analysis – Pexh.5.
(4) Metal rod – Pexh.9
(5) MPESA records – Pexh.10.
PW7 said one of the victims was tied with a rope which he produced as PExh.4.
In cross examination PW7 said there were no visible fingerprints lifted from the metal rod. The victims said the attackers were in police uniform. They were not recovered.
Upon close of prosecution case the Appellant gave sworn statement and said that he was a farmer. He said that the allegations against him are false as he did not participate in the robbery.
He said that on 01/11/2022 he left his place of work at Maasai and got home at around 2 Pm. That the next day he went to watch Soccer at Birongo and he met Amos. He said that he used to gamble with Amos and he had beaten him in 5 games. That Amos paid him Kshs. 350/= leaving a balance of Kshs. 150/=. That when he met Amos, he said he had the money on MPESA and said he had forgotten the Pin and that he had used the sister’s ID to register the line.
That Amos gave him the SIMCARD and asked him to call Safaricom to activate the line. That he send Kshs. 1/= to that line and saw a balance of Kshs. 243/=.
That he was given the ID Number and details of the line to call Safaricom then later to withdraw Kshs. 150/= and give him the balance.
That Amos sent him to his sister’s MPESA shop who could allow him to make a withdrawal. That he gave the sister the phone and she called Safaricom who gave her the MPESA Pin. That he proceeded to the MPESA shop and withdrew Kshs. 200/=. The attendant asked for his ID and the name was for Zipporah Nyatangi. That the lady asked where he got the line from and he told her. That she called the husband who called the police and had him arrested. He said Amos wanted to fix him.
In cross examination by Mr. Masaki the accused said that he was at work at Maasai on 30/10/2022. He said his employer was not in court. The accused said that he was 29 years old and that his telephone No was 0799646789. He said he did not withdraw money from his line. He said he knew how MPESA operates and he was aware that the registered owner of a line is the one who is to make a withdrawal from MPESA. The accused prayed for forgiveness.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 7th January 2025 and are to the effect that that the Learned Trial magistrate erred in Law and fact in convicting the Appellant against the weight or the evidence tendered before the Trial Court.
The Appellant’s counsel reiterated the duty of the first Appellate Court is to reconsider the evidence adduced before the Trial and re-evaluate it afresh, albeit only taking into account that it did not the benefit of seeing and hearing the witnesses as the Trial Court did and thus give an allowance for the same as well set out in the case of Okeno vs Republic (1972) EA, 32 where the East African Court of Appeal expressed itself thus;
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [19571 EA 336) 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. (Shantilal M. Ruwala v R, [19571 EA 570). 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 court's 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, see Peters v Sunday Post, [19581 EA 424”
In analyzing the prosecution evidence counsel for the Appellant submitted that from PW1’s narration of the events which occurred on the material night, same raises fundamental suspicions which easily casts doubts as to the veracity and truthfulness of the same. The Appellant’s counsel questioned how PW1 managed to untie himself and run away if at all he was lying down and tied using strings, in the presence of armed five (5) men.
That is PW1 managed to run away while tied, his sister would have spotted the same and describe that when giving her evidence in Court.
It was contended that the evidence of PW1 and PW3 was contradictory as to who between them ran away and left the other at the scene of attack.
It was also submitted that PW1 did not report to the police that he had called his phone 2 days after it was stolen it was going through.
It was also submitted that when PW1 was cross-examined he contended that he had saved the ID number on his phone. However, no particulars were given as to whether the said ID Number was his or for his sister, one Zipporah. That he also confirmed that whereas the Sim card which was recovered had no Pin, the Mpesa was secured with a Pin, which he alleged that he would not tell how the Appellant obtained it.
It was the Appellant's submissions that an Mpesa Pin can only be disclosed to the owner by Safaricom or to any third party upon thorough verifications. The Court was urged to take judicial notice that the verification questions posed by Safaricom agents are sensitive and personal and can only be answered by the registered owner. That a third party can only be able to answer the same if only same have been conveyed to him by the owner.
It was submitted that whereas PWI feigned ignorance on how the Appellant managed to obtain the Mpesa Pin, in his defence, the Appellant explained in detail that it is actually PWl who disclosed to him the above details which enabled him to successfully get the Mpesa Pin.
In regard to evidence by it was submitted that the evidence of Pw3 is difficult to comprehend who is telling the truth, particularly when PW3 says that he ran away leaving behind PW1 when PW1 testified that he is the one who ran away and left behind PW3 together with the alleged assailants.
It was also submitted that the evidence of PW4 equally raised fundamental gaping holes which leave a lot of doubts in the Prosecution's case. That she alleged that she was called by the subject telephone number on the 2nd of September, 2023 and directed to send money to a telephone number of 0796089997 and ID No. 2334441, which she declined.
It was submitted that such assertion casts aspersions as evidently, if at all she was called, she would have lodged a report at the police station, especially after being aware of the alleged robbery incident a few days back.
It was further submitted that investigations would have easily revealed who was the registered owner of the given Telephone number and the ID. The Appellant’s counsel argued that it was inconceivable on how PW4 would not have disclosed that call to PW1 or even her husband and only disclose it while giving evidence in Court, several months later.
The Appellant’s counsel faulted the Trial Court for failing to analyze the above and discern the serious discrepancies which had been isolated out. It was argued that the Court merely proceeded to and relied on the doctrine of recent possession by holding inter alia that by dint of the recovery of the Sim card from the Appellant, the same must have been involved in the robbery incident.
It was submitted that the Appellant gave a plausible, genuine and believable explanation on how he came into possession of the sim card for the line of Tel. No. 0740626071.
Further, the Appellant confirmed that it is the complainant who sent him to his sister's Mpesa shop who could allow her to make the withdrawal. It was his evidence that when Pw4 and her husband questioned him, he explained to them the circumstances.
It is notable that the circumstances under which the Appellant herein got the Mpesa Pin as evidenced by his evidence was not impugned on cross-examination. As already submitted, an Mpesa Pin can only be disclosed to a third party either by the registered owner and or by Safaricom upon thorough inquiries and verification of some pertinent particulars on the ownership and transactions on the line.
In any event, it is notable that from the charge sheet, the items that are indicated to have been stolen were a Mobile Phone of make Itel A24 valued at Kshs. 7,000/= and the sum of Kshs. 33,607/= which though alleged to be the property of the complainant, Pw2 alleged that same constituted the daily collection for the day from the Petrol station.
That in any event, it is evident that the Safaricom line for No. 0740626071 was not part of the items listed in the charge sheet as to have been stolen. Moreover, none of the listed items in the charge sheet were recovered from the Appellant.
It was the view of the Appellant’s counsel that the Trial Court erred in applying the doctrine of recent possession to an item that was not listed as to have been stolen from the Complainant on the date of the alleged incident.
The Appellant’s counsel cited the Court of Appeal case of Gilbert Onyango Osino & Vincent Iganga vs Republic [20161 KECA 242 (KLR), where the Court emphasized that the doctrine of recent possession only applied to items belonging to the Complainant and which were stolen from him.
It was submitted that the Prosecution ought to have tendered credible and cogent evidence in proof that the sim card allegedly recovered from the Appellant was in the phone that was stolen from the Complainant and provide particularly the IMEI details and Data from Safaricom to confirm the location and the movement of the phone. That it was not enough to merely state that the Sim card was in the phone that got stolen from the alleged incident on the material night, particularly this being a Criminal trial which requires evidence which is beyond any reasonable doubt.
The court was also referred to the recent holding by the Court of appeal in the case of Musyimi v Republic (Criminal Appeal 48 of 2021) [20231 KECA 1156 (KLR) (6 October 2023) (Judgment) where in almost similar facts as in the instant case, the Court expressed itself thus;
"From the record, it is clear that the court relied on the Mpesa statements and the records from the Registrar of Persons to find that the appellant must have been among those who had committed the crime. However, no expert witness from Safaricom Limited was called to authenticate the fact that the phone that was used to send the money at the time and the line thereon belonged to the appellant and that the same was within the vicinity of the scene of crime at the time it was used. Prudence would have required that an expert from Safaricom Limited be called to shed light on the M-pesa transaction as well as the whereabouts of the mobile phone used at the time and the area where the sim card was at the time”.
To us, without this evidence, the fact that the money had been sent to the appellant's phone does not place the appellant at the scene of crime. We are thus unable to connect the appellant to the offence given that the trial court used the fact of sending the money and the presence of the identity card to pin him to the offence. When we place the evidence on record vis-a-vis the authorities we have cited on the aspect of recent possession, we are satisfied that this case did not meet the threshold at all. The appellant in a nutshell was not found in possession of recently stolen property belonging to EKN."
It was submitted that the Trial Court erred in convicting the Appellant herein based on the doctrine of recent possession when there was no sufficient evidence and link connecting the Appellant to the commission of the alleged offence.
In regard to the Notice by the Respondent to enhance sentence the Appellant’s counsel submitted that in their view, in the absence of a cross-appeal, such prayer cannot be granted on the basis of submissions. That in any event, on the basis of the Constitution, 2010 and the recent jurisprudence on sentencing, the Trial Court and this Court have the discretion on the sentence to be meted out, after taking into account the mitigation offered by an accused.
The court was urged to find the Appeal herein merited and pray that the same be allowed.
The Respondent’s submissions are dated 27th December 2024 and are to the effect that the appeal is opposed as follows: -
That on grounds 1,2,3 and 4 the appellant contends that the prosecution evidence was insufficient to prove the ingredients for the offence of Robbery with Violence. It was submitted that the ingredients of the offence of Robbery with violence under Section 296(2) are:-
a. The offender is armed with nay dangerous and offensive weapon or instrument;
b. The offender is in company with one or more person or persons; or
c. At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.
It was submitted that it is trite law that a single of the above elements if satisfied is sufficient to prove the offence of Robbery with violence.
It was submitted that from the evidence tendered by PW1 the ingredients of the offence of Robbery with violence were properly established.
On the second issue whether the Appellant was properly identified as the robber; it was submitted that the prosecution case is based on the recovery of the SIM card which was inside the robbed mobile phone for PWI and it was the evidence of PW4 that on 3rd November 2022 while at her Mpesa shop the Appellant withdrew Kshs. 200 which transaction message showed the name of Zipporah Nyatangi. PW4 knew the complainant PW1 had used Zipporah Nyatangi details to register his mobile number 0740626071 which PW4 knew well that the line was inside the stolen mobile phone of PW1. PW4 then called her husband PW5 who arrived and restrained the appellant, thereafter called police officers who arrested the appellant.
It was the evidence of PW1, PW4 and PW5 that the stolen mobile phone had PW1's SIM card which was recovered with the Appellant bar
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The particulars were that on 30th October 2022 at Birongo market in Kisii Central Sub-County within Kisii County jointly with others not before court, while armed with crude weapon namely panga and metal bar robbed Amos Nyatangi Onchiri Kshs. 33,607/=, one mobile phone make Itel A24 valued at Kshs. 7,000/= and immediately before or immediately after the time of such robbery used actual violence to the said Amos Nyatangi Onchiri.
The Appellant was also charged with the offence of grievous harm in the 2nd count contrary to Section 234 of the Penal Code.
The particulars were that on 30th October 2022 at Birongo market in Kisii Central Sub-County within Kisii County jointly with others not before court, while armed with crude weapon namely panga and metal bar unlawfully assaulted Lameck Okindo Nyangweso occasioning him grievous harm.
The Trial magistrate upon consideration of the evidence 7 prosecution witnesses and the Appellant’s sworn statement in defense found the Appellant guilty and convicted him. The Appellant was subsequently sentenced to serve. TEN (10) YEARS imprisonment, to run from 04/11/2022 when he was arrested.
The Appellant was aggrieved by the conviction and sentence and he appealed against the same vide Memorandum of appeal date 12th February 2024 on the following grounds:
1. The Learned trial Magistrate erred in fact and law in convicting the Appellant under count 1 of the offence charged, whereas the essential ingredients of the offence were not proved by the prosecution beyond reasonable doubt.
2. The Learned trial Magistrate erred in fact and law in failing to find that the prosecution evidence was insufficient to sustain the conviction and sentence and by convicting the Appellant against the weight of the evidence adduced
3. The Learned trial Magistrate erred in fact and law in analyzing and/ or evaluating the prosecution’s evidence separately, forming a considered opinion/impression thereof and then laying the burden on or dispelling the pre-meditated impression upon the Appellant contrary to the established principle in criminal law, which casts the burden of proof upon the Respondent.
4. The Learned trial Magistrate erred in fact and law in failing to find that the prosecution’s evidence was riddled with massive gaps. insufficient evidence, contradictions and inconsistencies that could not sustain a conviction.
5. The Learned trial Magistrate erred in law and fact by failing to consider the mitigation adduced by the Appellant.
It is proposed to ask the court for orders THAT:
a. The appeal be allowed
b. Judgment on conviction on count 1 of the offence charged and the sentence by the trial magistrate be set aside and/ or quashed.
PW1 Amos Nyatichi Onchiri testified that he was a Fuel Attendant at LOAMU ENERGY PETROL STATION in Birongo and that Hamed Harron was the Manager. He said that he was on shift at 3.50 Pm on 30/10/2022. He said that Lameck was the Security Guard at the petrol station. He said that at11.50 Pm, there was a Power outage and as they were going to switch on the generator, he saw around 5 people run towards the station. That he used the torch on his mobile phone and saw the men were in police uniform so he relaxed. That the men ordered them to lie down and took the strings on his jacket which they used to tie him. That they took his mobile phone make ITEL A24 and also took the panga that Lamech had. That while one of them tied PW1 another man took away money from his pocket. He said the money taken was proceeds for the evening proceeds totaling to Kshs. 33,000/=. PW1 said that the men hit him on the fore head. That he then managed to run away to his sister’s house, 200 metres away and he left the others behind at the Station. He said the incident happened when there was a power outage. PW1 said that the only source of light he had was from his mobile phone. PW1 said he went to hospital for treatment. He identified P3 Form which was filled upon his treatment.
That two days later he tried to call his number (0740626071) from the stolen phone and when the call went through a male voice picked the call and he was in shocked and he hang up.
That on 04/11/2022, his sister Phane Monchari informed him that someone had gone to withdraw money from her MPESA shop using his MPESA line and presented a National ID using his sister’s (Zipporah Nyatangi) ID number. The man had given all the said ID number to process the transaction.
PW1 said he had not replaced his line at the time. That his A/C had Kshs. 240/= and the man was arrested at Phane’s MPESA Shop. That he went and saw him. He said it was the Accused herein. (Points at him). That he had an Itel phone with IMEI No. 354548109716365, black and orange in colour – PMFI 2. PW1 said that due to the darkness he was unable to identify any of the assailants and he had not seen the Accused person before.
PW1 said the Itel phone recovered was not his but the Safaricom SIM CARD was his. He said the phone had 2 Safaricom sim cards (PMFI 3(a) & (b) and 1 Airtel sim card (PMFI 3(c). He identified the black and white jacket string (PMFI 4) that was used to tie his hands during the incident.
When the Appellant cross examined PW1 he said that he did not see the Appellant during the attack and he did not see the person who tied him. He also said that the assailants stole Kshs. 33,000/= from his pocket although he had not recorded this in his statement. He said that his SIM CARD was not secured with a PIN and he did not know how the Appellant obtained his MPESA PIN. He said he had saved the ID Number on his phone. He said he ran away and left the assailants at the station. He said he was with LAMECK at the station. He also said that he did not report the matter to the police the same evening. He said he was rushed to hospital and the Manager was notified of the attack.
In re – examination by Mr. Kaino PW1 said that he knew the amount stolen from him after the Manager reconciled the A/C. He said that he did not give out his MPESA PIN.
PW2 Ahmed Hassan Khalif the Manager at Loamu Energy Petrol Station in Birongo testified and said he knew Amos Nyatangi (PW1) who was employed as a pump Attendant.
That on the night of 30/10/2022, he was on duty with Lameck as the Security Guard when at around midnight he received a call by a neighbour lady one Ziporah Mobisa who informed him that the Petrol Station had been attacked.
He rushed to the scene and saw blood stains. He said the 2 employees had been rushed to hospital. PW2 reported the matter to the police. He said he also saw Lameck’s jacket at the scene. That the 2 reported to him that Amos had lost Kshs. 33,607 and his mobile phone. That when he reconciled the accounts for the sales conducted by Amos that evening, he confirmed the amount stolen. He identified the Daily Litres and cash analysis sheet – PMFI 5.
That later he learnt that one suspect had been arrested using Amos’s SIMCARD while withdrawing money from his mobile number 0740626071. This was Amos’s mobile number that was known to him but he did not see the suspect. He said Amos’s sim was registered in the name of his sister.
In cross examination PW2 said that he got to the petrol station at around 12.30 am and there was no one at the scene. He said that he stayed nearby. He said he did not touch Lameck’s jacket and it was not recovered by the police.
PW3 Lameck Okindu Nyangweso testified that he was a Security Guard at LOAM PETROL STATION. He said that on 30/10/2022, at around 6 Pm he reported to work and that Amos Nyatangi the fuel attendant was on duty with him. That at midnight he was inside a Nissan matatu that was parked at the Petrol Station when lights went off. That he called Amos and asked him to switch on the Generator. That he stepped out of the motor vehicle and they were attacked by around 4 men who had spotlights. That he ran away and hide and when he realized that the 4 men were in police uniform, he went back to the Petrol station. They asked him why he had run away and they were ordered to lie down. That Amos obeyed and lay down. That one of the attackers stepped on his head and hit his head on a stone and he was injured.
That when he decided to run away one of the attackers hit him on the head as he fled and left Amos behind. PW3 called for help from neighbours. When they went back to the scene, the attackers had left.
That he was taken to Kisii Teaching and Referral hospital where I was admitted for 7 days and a P3 form was issued and filled (PMFI 6). PW3 said nothing was stolen from him.
The attackers had metal implements which they used and inflicted injuries on the left and right side of his head. That he saw the attackers when the torch was shone on him. PW3 later recorded his statement. He said he did not know the Accused person.
In cross examination PW3 said that the assailants were of different heights and were dressed in police uniform. That he thought they were officers on patrol when the lights shone on them and that is why he went back. That one of the men removed his black jacket and another stepped on his head. PW3 said his jacket was recovered at the scene.
PW4 PHANE MONCHARI testified that she lived in Birongo and ran an MPESA shop. That on 31/10/2022, her brother Amos Nyarangi informed her that he had been attacked while at work at LOAM Petrol station. That he went to her house past midnight and was bleeding from the forehead. PW4 said that her house was ½ km away and that her husband took her to the hospital. That on 03/11/2022, while at her MPESA shop, she received a client whom she identified as the Accused.
That the client withdrew Kshs. 200/= and the name that appeared was Zipporah Nyarangi the name of her elder sister. She said that line was registered using her ID. She said Amos had lost a mobile phone with the line registered in her sister’s name. That she called her husband, Rogers Ongagi to the shop without alerting the accused.
That when her husband arrived restrained the client who said that the line belonged to his cousin. Thereafter he claimed he picked the line in the bushes. He again changed to say he had picked it from the police line. PW4 said the accused did not have a National ID.
He withdrew money and gave me an ID number for the said transactions. He claimed he had used his cousin’s (Elizabeth) to withdraw the money.
That before the incident, the same number had called and tested her (on 02/11/2023) to send him money. That she told him she did not have money. That the accused gave her 0796089997 and ID No. 2334441 so that she could send money to that number.
PW4 said the Accused was unknown to her but when she saw the number, she recognized it. That she tried to sweet talk him to identify himself but he failed to. That she was surprised that the same person went to withdraw money from her MPESA shop. She said that it was purely coincidental that the accused went to her Mpesa shop. That they called the police from Birongo police station who arrested him.
In cross examination, PW4 said that the accused said that Zipporah had sent him. She said that she was not aware that Amos and the accused were friends. She said the accused claimed Zipporah was his cousin but that he went by himself and found her alone. PW4 said that the accused called her on 02/11/2022 at night and on 03/11/2022 before he went to the shop.
PW5 Rodgers Oira of ID No. 29384281testified that he lived in Birongo and was a businessman. That on 04/11/2022 he was asleep in the house when his wife who was in the shop informed him that someone had come to withdraw money using Amos’s number but did not have an ID.
That he went round and restrained the man who claimed he had picked the line at the police line. He said they called the police who went and arrested him.
PW5 said he knew the number was being used by his brother in-law, Amos who had reported the line missing in a robbery on 30/10/2022.
PW5 identified the accused as the man who went to the shop. He said the accused was unknown to him before.
He said Amos lived with him and PW4.
PW6 Scholastica Okoth a Clinical Officer at Iyabe Sub-County Hospital testified that he had come to court on behalf of Mr. Daniel Nyameino a Senior Clinician at Kisii Teaching and referral Hospital. He said he had worked with Mr. Nyameino for 13 years when he worked at Kisii Teaching and Referral hospital and he knew his handwriting and signature.
He said that on 15/11/2022, Mr. Nyameino examined one Lamech Okindu Nyangweso under OPD No. 065/683/2022 who had history of assault on 31/10/2021. That the patient had 2 stitched cut wounds on the scalp right parietal occipital wound measuring 7cm long, a parietal swollen cut measuring 3cm. That the patient had bruises on the upper limbs. Injuries were around 2 weeks old probably caused by a blunt and sharp object.
That a CT scan of the head showed an acute right frontal temporal subdural haematoma and comminuted parietal displaced skull fracture, right occipital mastoid linear fracture, right parietal and temporal skull haematoma.
That the patient was given Anti – convulsants and Tetanus injection. The injuries were assessed as Grievous harm. PW6 produced P3 Form as Pexh. 6 and outpatient Card as Pexh.7.
PW6 also produced P3 Form for Amos Nyarangi which was filled on 15/11/2020 under OPD No. 065684/2022 with a history of Assault on 31/10/2022.
He said Amos Nyarangi had tender healing abrasions on the head, pink in color, probably caused by a blunt object around 2 weeks old.
Injuries were assessed as harm. P3 form signed by Mr. Daniel Nyameino on 15/11/2020 was also produced as Pexh.1. Outpatient Card was also produced as Pexh. 8.
PW7 No. 239361 IP George Thiong’o attached to DCI Kisii said he was the Investigating officer. That on 31/10/2022, he was at the office when the DCIO called and informed him about a robbery with violence matter at Birongo area. That he called several officers and proceeded to Birongo centre where he met IP Robi the Investigating officer Birongo Police post who led them to LOAMU Petrol station where they met the Manager, Ahmed Hassan.
The Manager informed them that on 30/10/2022 at midnight the Petrol Station was attacked by men wearing police uniforms and injured the fuel attendant, Amos and the guard, Lameck Okindo who were hit on the head. That Amos had lost the evening sales of Kshs. 33,000/= and his mobile phone make ITEL which had a SIM CARD with Number 07 40626071 registered in the name of Zipporah Nyatengi, That Amos went to his sister’s house and he was taken for treatment. PW7 proceeded to Kisii Teaching and referral Hospital to visit Lameck Okindo who was at the Emergency Room and was in a lot of pain.
That on 04/11/2022, at 10 am, IP Robi called to inform him that they had arrested Hezron Maronda in possession of the lost SIM CARD. That he had presented himself to DAWAKS Holdings Ltd MPESA Shop and withdrew Kshs. 200/=. The attendant, Phane Monchari a sister to Amos, realized that Zipporah Nyatangi was the registered name of the number used for withdrawal.
That she asked Hezron for the ID and he gave ID No. 38821626 which belonged to Zipporah Nyatangi. That Phane called the husband who questioned the suspect who had no good reasons to have the SIMCARD leading to his arrest.
That he interrogated Hezron who could not explain how he came by the SIMCARD. PW7 recovered an ITEL phone (PMFI 2) with 3 SIMCARDS – 0796089997, 0754403376 and 0740626071 belonging to Amos. PW7 also recovered a metal bar (PMFI 9) from the crime scene.
He charged the Accused with Robbery with Violence. The amount reported stolen was contained in the records of the Petrol station which was produced as PEx 8. He also produced records for withdrawal of Kshs. 200/= by 0790626071 Ex P 10. PW7 produced:
(1) Itel phone – Pexh.2.
(2) 3 SIM CARDS – Pexh. 3(a) – (c)
(3) Daily cash Analysis – Pexh.5.
(4) Metal rod – Pexh.9
(5) MPESA records – Pexh.10.
PW7 said one of the victims was tied with a rope which he produced as PExh.4.
In cross examination PW7 said there were no visible fingerprints lifted from the metal rod. The victims said the attackers were in police uniform. They were not recovered.
Upon close of prosecution case the Appellant gave sworn statement and said that he was a farmer. He said that the allegations against him are false as he did not participate in the robbery.
He said that on 01/11/2022 he left his place of work at Maasai and got home at around 2 Pm. That the next day he went to watch Soccer at Birongo and he met Amos. He said that he used to gamble with Amos and he had beaten him in 5 games. That Amos paid him Kshs. 350/= leaving a balance of Kshs. 150/=. That when he met Amos, he said he had the money on MPESA and said he had forgotten the Pin and that he had used the sister’s ID to register the line.
That Amos gave him the SIMCARD and asked him to call Safaricom to activate the line. That he send Kshs. 1/= to that line and saw a balance of Kshs. 243/=.
That he was given the ID Number and details of the line to call Safaricom then later to withdraw Kshs. 150/= and give him the balance.
That Amos sent him to his sister’s MPESA shop who could allow him to make a withdrawal. That he gave the sister the phone and she called Safaricom who gave her the MPESA Pin. That he proceeded to the MPESA shop and withdrew Kshs. 200/=. The attendant asked for his ID and the name was for Zipporah Nyatangi. That the lady asked where he got the line from and he told her. That she called the husband who called the police and had him arrested. He said Amos wanted to fix him.
In cross examination by Mr. Masaki the accused said that he was at work at Maasai on 30/10/2022. He said his employer was not in court. The accused said that he was 29 years old and that his telephone No was 0799646789. He said he did not withdraw money from his line. He said he knew how MPESA operates and he was aware that the registered owner of a line is the one who is to make a withdrawal from MPESA. The accused prayed for forgiveness.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 7th January 2025 and are to the effect that that the Learned Trial magistrate erred in Law and fact in convicting the Appellant against the weight or the evidence tendered before the Trial Court.
The Appellant’s counsel reiterated the duty of the first Appellate Court is to reconsider the evidence adduced before the Trial and re-evaluate it afresh, albeit only taking into account that it did not the benefit of seeing and hearing the witnesses as the Trial Court did and thus give an allowance for the same as well set out in the case of Okeno vs Republic (1972) EA, 32 where the East African Court of Appeal expressed itself thus;
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [19571 EA 336) 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. (Shantilal M. Ruwala v R, [19571 EA 570). 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 court's 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, see Peters v Sunday Post, [19581 EA 424”
In analyzing the prosecution evidence counsel for the Appellant submitted that from PW1’s narration of the events which occurred on the material night, same raises fundamental suspicions which easily casts doubts as to the veracity and truthfulness of the same. The Appellant’s counsel questioned how PW1 managed to untie himself and run away if at all he was lying down and tied using strings, in the presence of armed five (5) men.
That is PW1 managed to run away while tied, his sister would have spotted the same and describe that when giving her evidence in Court.
It was contended that the evidence of PW1 and PW3 was contradictory as to who between them ran away and left the other at the scene of attack.
It was also submitted that PW1 did not report to the police that he had called his phone 2 days after it was stolen it was going through.
It was also submitted that when PW1 was cross-examined he contended that he had saved the ID number on his phone. However, no particulars were given as to whether the said ID Number was his or for his sister, one Zipporah. That he also confirmed that whereas the Sim card which was recovered had no Pin, the Mpesa was secured with a Pin, which he alleged that he would not tell how the Appellant obtained it.
It was the Appellant's submissions that an Mpesa Pin can only be disclosed to the owner by Safaricom or to any third party upon thorough verifications. The Court was urged to take judicial notice that the verification questions posed by Safaricom agents are sensitive and personal and can only be answered by the registered owner. That a third party can only be able to answer the same if only same have been conveyed to him by the owner.
It was submitted that whereas PWI feigned ignorance on how the Appellant managed to obtain the Mpesa Pin, in his defence, the Appellant explained in detail that it is actually PWl who disclosed to him the above details which enabled him to successfully get the Mpesa Pin.
In regard to evidence by it was submitted that the evidence of Pw3 is difficult to comprehend who is telling the truth, particularly when PW3 says that he ran away leaving behind PW1 when PW1 testified that he is the one who ran away and left behind PW3 together with the alleged assailants.
It was also submitted that the evidence of PW4 equally raised fundamental gaping holes which leave a lot of doubts in the Prosecution's case. That she alleged that she was called by the subject telephone number on the 2nd of September, 2023 and directed to send money to a telephone number of 0796089997 and ID No. 2334441, which she declined.
It was submitted that such assertion casts aspersions as evidently, if at all she was called, she would have lodged a report at the police station, especially after being aware of the alleged robbery incident a few days back.
It was further submitted that investigations would have easily revealed who was the registered owner of the given Telephone number and the ID. The Appellant’s counsel argued that it was inconceivable on how PW4 would not have disclosed that call to PW1 or even her husband and only disclose it while giving evidence in Court, several months later.
The Appellant’s counsel faulted the Trial Court for failing to analyze the above and discern the serious discrepancies which had been isolated out. It was argued that the Court merely proceeded to and relied on the doctrine of recent possession by holding inter alia that by dint of the recovery of the Sim card from the Appellant, the same must have been involved in the robbery incident.
It was submitted that the Appellant gave a plausible, genuine and believable explanation on how he came into possession of the sim card for the line of Tel. No. 0740626071.
Further, the Appellant confirmed that it is the complainant who sent him to his sister's Mpesa shop who could allow her to make the withdrawal. It was his evidence that when Pw4 and her husband questioned him, he explained to them the circumstances.
It is notable that the circumstances under which the Appellant herein got the Mpesa Pin as evidenced by his evidence was not impugned on cross-examination. As already submitted, an Mpesa Pin can only be disclosed to a third party either by the registered owner and or by Safaricom upon thorough inquiries and verification of some pertinent particulars on the ownership and transactions on the line.
In any event, it is notable that from the charge sheet, the items that are indicated to have been stolen were a Mobile Phone of make Itel A24 valued at Kshs. 7,000/= and the sum of Kshs. 33,607/= which though alleged to be the property of the complainant, Pw2 alleged that same constituted the daily collection for the day from the Petrol station.
That in any event, it is evident that the Safaricom line for No. 0740626071 was not part of the items listed in the charge sheet as to have been stolen. Moreover, none of the listed items in the charge sheet were recovered from the Appellant.
It was the view of the Appellant’s counsel that the Trial Court erred in applying the doctrine of recent possession to an item that was not listed as to have been stolen from the Complainant on the date of the alleged incident.
The Appellant’s counsel cited the Court of Appeal case of Gilbert Onyango Osino & Vincent Iganga vs Republic [20161 KECA 242 (KLR), where the Court emphasized that the doctrine of recent possession only applied to items belonging to the Complainant and which were stolen from him.
It was submitted that the Prosecution ought to have tendered credible and cogent evidence in proof that the sim card allegedly recovered from the Appellant was in the phone that was stolen from the Complainant and provide particularly the IMEI details and Data from Safaricom to confirm the location and the movement of the phone. That it was not enough to merely state that the Sim card was in the phone that got stolen from the alleged incident on the material night, particularly this being a Criminal trial which requires evidence which is beyond any reasonable doubt.
The court was also referred to the recent holding by the Court of appeal in the case of Musyimi v Republic (Criminal Appeal 48 of 2021) [20231 KECA 1156 (KLR) (6 October 2023) (Judgment) where in almost similar facts as in the instant case, the Court expressed itself thus;
"From the record, it is clear that the court relied on the Mpesa statements and the records from the Registrar of Persons to find that the appellant must have been among those who had committed the crime. However, no expert witness from Safaricom Limited was called to authenticate the fact that the phone that was used to send the money at the time and the line thereon belonged to the appellant and that the same was within the vicinity of the scene of crime at the time it was used. Prudence would have required that an expert from Safaricom Limited be called to shed light on the M-pesa transaction as well as the whereabouts of the mobile phone used at the time and the area where the sim card was at the time”.
To us, without this evidence, the fact that the money had been sent to the appellant's phone does not place the appellant at the scene of crime. We are thus unable to connect the appellant to the offence given that the trial court used the fact of sending the money and the presence of the identity card to pin him to the offence. When we place the evidence on record vis-a-vis the authorities we have cited on the aspect of recent possession, we are satisfied that this case did not meet the threshold at all. The appellant in a nutshell was not found in possession of recently stolen property belonging to EKN."
It was submitted that the Trial Court erred in convicting the Appellant herein based on the doctrine of recent possession when there was no sufficient evidence and link connecting the Appellant to the commission of the alleged offence.
In regard to the Notice by the Respondent to enhance sentence the Appellant’s counsel submitted that in their view, in the absence of a cross-appeal, such prayer cannot be granted on the basis of submissions. That in any event, on the basis of the Constitution, 2010 and the recent jurisprudence on sentencing, the Trial Court and this Court have the discretion on the sentence to be meted out, after taking into account the mitigation offered by an accused.
The court was urged to find the Appeal herein merited and pray that the same be allowed.
The Respondent’s submissions are dated 27th December 2024 and are to the effect that the appeal is opposed as follows: -
That on grounds 1,2,3 and 4 the appellant contends that the prosecution evidence was insufficient to prove the ingredients for the offence of Robbery with Violence. It was submitted that the ingredients of the offence of Robbery with violence under Section 296(2) are:-
a. The offender is armed with nay dangerous and offensive weapon or instrument;
b. The offender is in company with one or more person or persons; or
c. At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.
It was submitted that it is trite law that a single of the above elements if satisfied is sufficient to prove the offence of Robbery with violence.
It was submitted that from the evidence tendered by PW1 the ingredients of the offence of Robbery with violence were properly established.
On the second issue whether the Appellant was properly identified as the robber; it was submitted that the prosecution case is based on the recovery of the SIM card which was inside the robbed mobile phone for PWI and it was the evidence of PW4 that on 3rd November 2022 while at her Mpesa shop the Appellant withdrew Kshs. 200 which transaction message showed the name of Zipporah Nyatangi. PW4 knew the complainant PW1 had used Zipporah Nyatangi details to register his mobile number 0740626071 which PW4 knew well that the line was inside the stolen mobile phone of PW1. PW4 then called her husband PW5 who arrived and restrained the appellant, thereafter called police officers who arrested the appellant.
It was the evidence of PW1, PW4 and PW5 that the stolen mobile phone had PW1's SIM card which was recovered with the Appellant bar
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