JAMES KARARU KING'ORI VS The Republic JAMES KARARU KING'ORI VS The Republic

(Being an appeal on both conviction and sentence arising from original Nyeri Magistrates Court Criminal Case No. 1102 of 2015 delivered on 24^th June 2021 by Hon. W. Kagendo, CM)

J U D G M E N T

The appellants herein, James Kararu King’ori and Paul Kinuthia Mwangi were charged jointly with a third person Simon Adukan Makato with a principal charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya (PC) that on 13^th October 2015 along Nyeri-Karatina road in Nyeri County, jointly with another not before court robbed George Muraguri Gikonyo motor vehicle KBZ 144E Toyota Harrier valued at KShs 2.4 million and immediately after the time of such robbery killed the said George Muraguri Gikonyo.
They also faced an alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code that on 13^th October 2015 along Thika superhighway at Ruiru weighbridge in Kiambu County jointly otherwise than in the course of stealing dishonestly retained motor vehicle KBZ 144E Toyota Harrier knowing or having reasons to believe it to be stolen property.
The appellants pleaded not guilty to the charges. After a full trial in which the prosecution called 12 witnesses and each of the accused persons gave sworn evidence and called witnesses in defence, the trial court found the 3^rd accused person Simon Adukan Makato not guilty. He was found to have been a victim of circumstances and he was acquitted on both charges under section 215 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC). The appellants were each found guilty and convicted on the principal charge of robbery with violence in a judgment dated 24/6/2021. They were subsequently sentenced to spend the rest of their lives in prison.
Each of the appellants was dissatisfied with the judgment, conviction and sentence of the trial court and preferred an appeal through separate petitions of appeal. The 1^st appellant James Kararu King’ori preferred High Court Criminal Appeal No. E020 of 2021 and his amended grounds of appeal are undated but filed at the court registry on 18/7/2022 and the 2^nd appellant Paul Kinuthia Mwangi preferred High Court Criminal Appeal No. E021 of 2021 undated but received at the court registry on 12/7/2021. The two appeals were consolidated on 15/3/2022 into the instant appeal.
The 1^st appellant James Kararu King’ori appears in person while learned counsel Mr. Ng’arua appears for the 2^nd appellant, Paul Kinuthia Mwangi,. The appellants raised various grounds of appeal in their respective petitions. The grounds are common to both of them and are as follows:
1. The learned trial magistrate erred in law and in fact by convicting the appellants on a duplex charge.
2. The learned trial magistrate erred in law and in fact by convicting the appellants on contradictory and insufficient evidence and finding that the case had been proved to the standard required in law.
3. The learned trial magistrate erred in both law and fact by failing to find that the doctrine of recent possession had not been established to create a nexus between the accused person and the offences charged.
4. The learned trial magistrate erred in law and in fact by relying on the evidence of the co-accused person as supporting the prosecution case against the appellants.
5. The learned trial magistrate erred in law and in fact by disregarding the defence evidence.
6. The learned trial magistrate erred in law and in fact by meting out excessive sentence.
The appeal was opposed by the State through written submissions filed by learned prosecution counsel Pithon Mwangi, Principal Prosecution Counsel who contended that the prosecution proved their case to the required standards.
The appeal was heard by way of written submissions filed by the 1^st appellant in person, the 2^nd appellant’s and the respondent’s learned counsels.
This being a first appeal, this court is enjoined to subject the evidence on record to a fresh review and scrutiny and come to its own conclusions all the time bearing in mind that it did not see the witnesses testify as to form its own opinion on their demeanour as enunciated by the Court of Appeal in Okeno vs. Republic [1972] EA 32 that:

“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 vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) 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 finding and conclusion; 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 vs. Sunday Post [1958] E.A 424.”

A summary of the prosecution’s case against the appellants before the trial court was that on or about 13/10/2015 George Muraguri Gikonyo (deceased) the primary victim of the offences herein spoke to his wife PW 1, Faith Njoki on mobile phone during evening hours at around 6.00 p.m. He was working and staying in Nyeri while PW 1 stayed in Nairobi. A few minutes past 9.00 p.m. a person from a car track firm, whom she never came to know, which had fitted a car tracking device on her deceased husband’s car registration number KBZ 144E Toyota Harrier black in colour called PW 1 and informed her that the car had been recorded moving at very high speed towards Karatina area. The car track firm had tried to call the deceased’s phone number but it had not gone through so they called PW 1 as the alternative number. They advised her to make a report to the police.
PW 1 alerted PW 2, Julius Gikonyo Ngotho the deceased’s father. PW 1 then proceeded to make a report at Umoja police station in Nairobi. While there she was informed that the vehicle had been intercepted at Ruiru Weighbridge. PW 1 proceeded there immediately.
In the meantime, sensing danger, PW 2 contacted his friend one Dr. Mugo and informed him that his son had been hijacked and if he could help to contact the then Director of Criminal Investigations (DCI) Ndegwa Muhoro. He also gave Dr. Mugo the contacts of PW 1 so that he could get details of the vehicle registration number from her. Later PW 1 called PW 2 and reported to him that the vehicle had been traced at Ruiru weighbridge road block and three men had been found in it.
When PW 1 reached the Ruiru weighbridge she found her husband’s motor vehicle registration number KBZ 144E Toyota Harrier black in colour which she identified. The two appellants and the third accused person at the trial, were in the vehicle in the boot. Her husband was not in the vehicle but his items being a grey bag and other items were inside.
The three suspects and the vehicle were taken to Ruiru police station. Upon being interrogated by police on where the deceased was, initially, none of them offered an explanation. However, they later said where they had thrown him and the body was subsequently recovered around Hohwe dam between Nyeri and Karatina on a footpath the following day. PW 1 went to the scene the following day and saw the husband’s body. She said the body had a rope around the neck and that he had been strangled in what she described “like a goat.” PW 2 also went to the scene and saw the body while it was still lying there. He said the body had a rope around the neck and the hands and legs were also tied from behind with ropes. The body was later removed to the mortuary.
PW 3 Police Rider Leonard Githui Muriuki, PW 4, PC Alphas Musau and PW 9 Cpl Evan Kemboi were all working at the Ruiru Weighbridge road block on the night of 13/10/2015. A person who shall be identified in this judgment as A (for purposes of his security) approached PW 4, PC Musau and informed him that he was working for a security car tracking firm I will identify as X and informed him that their client, the deceased Dr. Gikonyo’s vehicle was being driven at exceedingly high speed beyond the set speed of 120 Km/Hr. at which the owner usually drove and it was heading towards Nairobi. That he suspected that his client had been carjacked in Nyeri and he was trying to reach him on phone but was not getting through. He gave him the vehicle particulars as registration number KBZ 144E Toyota Harrier and that it was moving from Nyeri towards Nairobi direction and if they could intercept it.
PW 3 called and informed PW 4 and PW 9 who were also on duty and they mounted a road block at the weighbridge. Shortly after, the vehicle approached the weighbridge at high speed. It was intercepted at the Ruiru Weighbridge along the Thika Superhighway being driven by James King’ori, the 1^st appellant while Paul Kinuthia, the 2^nd appellant was in the front passenger seat while Simon Adukan, the 3^rd accused person at the trial was in the back seat. The 1^st appellant and driver of the vehicle was wearing the jacket belonging to the deceased from which a driving licence bearing the name Gikonyo and therefore belonging to the deceased was recovered. These items were identified later by PW 1 and for the driving licence by the name thereon. The driving licence was not for James King’ori, the 1^st appellant who had been driving the vehicle. Other items, personal to the suspects at the time, were also recovered from the them but they are not material to the case. Cpl Kemboi, PW 9 searched the 2^nd appellant Paul Kinuthia Mwangi and recovered some three tablets from him.
PW 5 IP John Mugo works with the Regional Crime Scenes Support unit. He took photographs of the scene where the body of the deceased was found lying at Hohwe dam, Karatina and also of the vehicle KBZ 144E at Nyeri police station. The body was on the side of the dam and a few metres from the borehole. It was tied with a rope from behind and the face had blood stains He produced the photographs in court as exhibits 5A to 5F for the body and 1A and 1B for the car.
PW 6, CIP Kapiti of Nyeri DCIO conducted investigations in the matter. He went to Ruiru police station from where the three suspects were handed over to him together with the vehicle registration number KBZ 144E Toyota Harrier which they had been found with. He was handed over several other items recovered in the course of the arrest among them the brown jacket that was said to belong to the deceased. He also found some three tablets he suspected were narcotic drugs. He said he found the driving licence belonging to the deceased in the vehicle. The family members of the deceased later made available to him the log book for the vehicle.
On 30/10/2015 PW 6 visited the car track company “B” that had assisted in tracking the vehicle and recorded the statement of “A”. He was given a map and report of the movement of the vehicle from Nyeri to where it was intercepted. The same was produced in evidence as exhibit.
PW 7, Stephen Matinde Joel Maribe is an assistant government chemist. His evidence was on some drugs that were recovered from the accused persons and post mortem samples of the stomach, liver, kidney and blood recovered from the deceased’s body. Upon analysis of the specimens he found that the post mortem samples did not contain diazepam, a tranquilizer, the drug sample that had been recovered from the vehicle and suspected to have been used to drug the deceased.
PW 8, Dr. Obiero Okoth a pathologist conducted a post mortem examination of the deceased’s body at the provincial hospital, Nyeri. He formed the opinion that the cause of death was asphyxia due to ligature strangulation.
PW 10, MMM works as an IT Systems Administrator with B Ltd. He was on duty on the material night of 13/10/2015. He produced evidence, a certificate of installation and a purchase agreement that the deceased vehicle KBZ 144E was fitted with a monitoring device on 13/6/2014 and was being monitored over their website in real time. At around 2057 Hrs he started receiving an alarm that the vehicle was exceeding its speed parameter setting of 120 Km/Hr. He called the client, the deceased but he was unreachable. He then called the alternative number of his wife, PW 1 and alerted her. He advised her to report to the nearest police station. PW 10 then engaged the recovery team while he remained in the control room monitoring the vehicle until it was intercepted and stopped at the weighbridge. He also produced as evidence the report of tracking the vehicle and the device that had been installed in the vehicle for tracking.
PW 11 PC Daniel Kieni did not testify as he was not the maker of the document he had been called to produce and the defence vehemently opposed him producing it.
PW 12 PC Nelly Melly is a computer and cellular analyst. Her evidence is that she was handed over three mobile phones Techno and Nokia as well as several sim cards for Safaricom and Airtel networks. She was unable to make any analysis of the phones as they had technical problems. She however extracted messages from the sim cards. She prepared a report and produced it in court as exhibit.
The suspects were arrested and subsequently charged with the offences. They were tried and the two appellants herein convicted and sentenced to serve life imprisonment from which they now appeal.
In their respective defences the appellants denied the charges. The 1^st appellant did not call any witness. The 2^nd appellant called two witnesses. Simon Adukan, the 3^rd accused person gave evidence that he was a victim of circumstances as he had only hiked a lift from the two appellants along the way. He called three witnesses in his defence. The trial court believed him and acquitted him of the charges.
The 1^st appellant James Kararu King’ori was the 2^nd accused person in the trial court. He said he was at his father’s business of car wash opposite Ruiru weighbridge when they saw a crowd gathered at the weighbridge at around 9.30 p.m. His father was also present and he asked him what could be going on at the weighbridge. The 1^st appellant crossed there to see what was happening. An altercation arose between him and a police officer one Mwema who knew him well as he was no stranger there. Mwema harassed him and told him to leave then slapped him and the 1^st appellant slapped him back and the officer dropped his gun and this made some sound. Another police officer, Musau went to the rescue of his colleague. He asked the 1^st appellant why he wanted to rob Mwema of his gun and they arrested him and beat him up. The Ruiru police station OCS Madam Catherine Mwema came around and when the officers told her that he had slapped one of them she directed that he be placed in a Landcruiser which was stopped there next to a lorry. He was taken to where six other people had been made to lie down and later taken to Ruiru police station and subsequently charged. After arrest he was searched and his phone, wallet, driving licence and KShs 700/= were recovered from his pocket.
At the police station the DCIO showed him the recovered vehicle and asked him about it. He denied knowledge of it. He was put together with another person who was a stranger to him and they were both transferred to Nyeri police station over the vehicle the DCIO had questioned him about.
The 1^st appellant also said that his father spoke to the police officers at Ruiru police station before they were transferred to Nyeri and told them how they had been together at the car wash the night of his arrest. However, it is apparent that the officers never believed him, if at all what the 1^st appellant says was anything to believe. He said that his father died while he was in custody and consequently he could not have him testify for him. He was also not able to trace his co-workers at the car wash due to the demise of his father.
The 1^st appellant produced documents which in cross-examination showed that the burial permit was in respect of one Paul King’ori Matongu while the certificate of death was for one Paul King’ori Kariuki to show that his father had died. He explained the discrepancy as a typing error. He said that he was a driver and could drive anywhere but that he was not the driver of the recovered car belonging to the deceased. He said he was wearing an apron and gumboots at the time of his arrest and that he had never owned a leather jacket and was not wearing one at the time. He said he met the 2^nd appellant in the cells at Ruiru police station where they were together with a third person who was bleeding profusely. He met, the 3^rd accused person who was acquitted at the DCIO’s office during interrogation. He said he never saw the recovered vehicle at the weighbridge but saw it at Ruiru police station.
The 2^nd appellant Paul Kinuthia Mwangi, was the 1^st accused person at the trial. He said that he was arrested while on his duty of organizing the passage of building stones at the Ruiru weighbridge by talking to the police officers manning the road block. He had just alighted from a lorry ferrying some 10,000 pieces of stones to go and talk to the police officers when he heard a voice shouting that he was the one running and he should be shot. He was then arrested by police officers and ordered to lie down amongst other people. He was subsequently taken to Ruiru police station where police officers demanded for KShs 200,000/= to have him released. He said he did not have such money and he was later ferried to Nyeri and charged with the offences.
The witnesses for the 2^nd appellant were DW 1, Justin Murithi Karuru and DW 2, Mary Kariuki. Mary said she worked at Nature Company as a clerk counting stones. She was a colleague of Paul, the 2^nd appellant who was a sales person there. They worked together the material day and in the evening she counted 10,000 stones that were loaded onto a lorry. They both hiked a lift from the lorry. On reaching the weighbridge there was a huge traffic jam. The 2^nd appellant alighted ahead of her saying he was going to see the cause of the traffic jam. After she alighted to board a matatu she heard people around there say that some robbers had been arrested. She saw the 2^nd appellant lying down among some people and upon inquiring from a police officer he told her that they had committed a robbery in Nyeri. They were then put in a Landcruiser and taken to Ruiru police station. DW 2 went back to the lorry, informed the driver who parked the vehicle and they both went to the police station. When the asked to see they 2^nd appellant they were told to produce KShs 200,000/=. They did not have. She went back the following day and she was told the suspects had been taken to Nyeri police station. The 2^nd appellant then called her after a month and told her that he had been charged with robbery with violence.
Apparently, the appellants and the 3^rd accused person in the trial court were charged in Thika Magistrates Court Criminal Case No. 6625/2015 on a charge presented to court on 17/11/2015 just about the same time that their trial herein commenced on 3/11/2015. After the 3^rd accused person in the trial court had offered his evidence in defence the 2^nd appellant herein, Paul Kinuthia applied to the trial court to reopen the case and have the proceedings and judgment in the Thika case produced as evidence in the present case. This was after the 3^rd accused person had testified and raised the issue of the case in the Thika Court. The application was granted and the proceedings and judgment were produced in evidence. That case was concluded on 9/11/2020.
In the Thika case, the appellants herein and the 3^rd accused person in the trial court were jointly charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code allegedly committed on 24/9/2015, just about three weeks from the allegations leading to the charges herein. It is apparent that their arrest in the present case led to their being arraigned for the alleged offence in the Thika case. The 1^st appellant herein James King’ori and the 3^rd accused person in the trial court Simon Adukan Makato were acquitted of the charges in the Thika Court after full hearing. Paul Kinuthia Mwangi, the 2^nd appellant herein was however found guilty, convicted and sentenced.
In the Thika case, the 1^st appellant herein James Kararu King’ori gave sworn evidence and testified that on the date of his arrest 13/10/2015 he was he was working as a driver with Traders Squad drivers. At about 10.00 p.m. a fellow driver called Joseph Muna called him to the Ruiru weighbridge. When he went there, a weighbridge police officer by the name of Evans Kiboi, with whom the 1^st appellant was not on good terms, directed that he was not required at the weighbridge as he had previously ordered him not to go there after the 1^st appellant refused to share his driving work proceeds with him. An altercation arose, the police officer, Kiboi slapped him and they fought. They were restrained by other police officers. He was then arrested and taken to Ruiru police station on allegations of trespass. He met the co-accused persons at the police station. The following morning, DCI officers interrogated him over the present case and he was subsequently charged with the offences.
In the Thika case, the 2^nd appellant also gave sworn evidence. He said that at the time of arrest he was working as a salesman with Benver estate company. He had differences with one of his bosses one Magdalene Njoki Mbugua, the finance manager over a love triangle he had engaged in with her and a second lady. This apparently irked Magdalene who vowed to use her influence to jeopardize his sales job and for sure his engagement with the company was terminated. He went on to deal directly with the clients he had acquired. He was however arrested and charged maliciously in the Thika case at the instigation of Magdalene due to the love triangle as she demanded that he ends his relationship with the second lady whom he had apparently married.
I have considered the grounds of appeal by both appellants and the submissions by the 1^st appellant as well as counsel for the 2^nd appellant and the State. The issues for determination, are as per the grounds of appeal set out above.
At times it is difficult to follow the submissions by learned counsel for the 2^nd appellant but I have tried to make the best of what appears in the amended appellant’s submissions dated and filed on 17/10/2022. For instance, the submissions are not clear on whether the appeal is on sentence only or both conviction and sentence. Decisions of courts are cited without clarity on which specific issue in the appeal they are supporting or whether they are relevant to the appeal at all and the arguments presented on the issues do not flow in a logical manner. All the same, I have considered the appeal on both conviction and sentence as per the grounds set out in the memorandum of appeal even as I note that on 7/6/2024 Mr. Ondieki appearing for the 2^nd appellant appeared to be stating that they were praying for the revision of the sentence only.
Each of the appellant’s raised issue with the propriety of the principal charge of robbery with violence. The 1^st appellant’s submission on the same is that the principal charge was duplex for charging two offences in one, that is simple robbery under section 295 of the PC and robbery with violence under section 296(2) of the PC. He cited the case of Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR in support where the Court of Appeal observed that it would not be correct to frame a charge for the offence of robbery with violence under section 295 and 296 (2) as this would amount to a duplex charge.
Learned counsel for the prosecution concedes that indeed that would amount to duplicity but goes further to submit that this did not cause an injustice to the appellants as they participated in the trial. He has cited the case of Paul Katana Njuguna v Republic [2016] eKLR where the Court of Appeal in a later decision and differently constituted considered the issue of duplicity of a charge where the appellant had been charged with the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code and observed as follows;

“Having considered the law on duplicity as it has evolved, can we say that the charge as framed in the appeal before us was so defective as to have occasioned a failure of justice? Can it be said with any certainty that the said defect is incurable under Section 382 of the Penal Code. We observe that the offence under Section 295 and 296 (2) were not framed in the alternative. So, following the decision in Cherere s/o Gakuli -v- R (supra) Laban Koti -v- R. (supra) and Dickson Muchino Mahero v R. (supra), the defect in the charge herein is not necessarily fatal.”

In that case the Court of Appeal further explained the rational of its holding in the two earlier cases of … thus:

“It is significant to note that in the two cases, the issue of duplicity was not raised by the appellants, and the court did not determine that a charge framed as the one we are considering should result in setting aside the conviction entered. The court could not, indeed, so find as the appellants were the ones complaining that they were prejudiced by failing to cite Section 295 in a charge under Section 296(2).”

From the foregoing holding, it is clear that the Court of Appeal has clearly stated that it was not its intendment to hold that charging an accused person of robbery with violence under sections 295 as read with section 296(2) of the PC makes the charge duplex. That argument is therefore misplaced and I reject it. I find that the charge was properly framed and suffers no duplicity.
On his part, the 2^nd accused person submitted that the charge sheet was defective for not being signed by the prosecutor. The argument advanced by learned counsel for the 2^nd appellant on this issue is circuitous. The authorities cited of Zacharia Okoth Obado v Director of Public Prosecutions [2022] eKLR and Amos Mbugua v Republic [2017] eKLR are in fact for the position that such an irregularity would not vitiate a charge against an accused person and it is curable under section 382 of the Criminal Procedure Code which provides that:

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

As was held in the Okoth Obado case, the appellant’s herein have not demonstrated how they were prejudiced by the alleged omission to sign the charge sheet by the prosecution counsel. The irregularity cannot therefore be used as a ground to challenge the propriety of the charges in the trial court. In any case, they never raised that issue in that court and so it must be taken that they accepted it as it was laid before them.
I now turn to whether the prosecution proved its case against the appellants beyond a reasonable doubt. This covers grounds (ii) to (v) of the grounds of appeal above.
The appellants were charged with the offence of robbery with violence. The ingredients constituting the offence of robbery with violence were stated in the case of Johana Ndungu vs. Republic CRA 116/1995 (UR) which is cited in the case of Paul Katana Njuguna above, thus:

“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved will constitute the offence under the subsection:

If the offender is armed with any dangerous or offensive weapon or instrument; or
If he is in company with one or more other person or persons; or
If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.”
The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.” (see Dima Denge Dima & Others v Republic [2013] eKLR.
This case is hinged on two aspects of robbery with violence, that the appellants were in company of each other, that is, they were more than one and second that they used violence upon the deceased because he died in the process of the robbery and there was evidence that he had been tied with ropes and strangled.
Upon analyzing the evidence, the learned trial magistrate disbelieved the stories tendered by the two appellants and found that the prosecution had proved the case against each of them beyond a reasonable doubt and convicted them accordingly.
It is apparent that the prosecution’s case dependent entirely on circumstantial evidence based on the doctrine of recent possession. The ingredients of that doctrine are as stated by the Court of Appeal in the case of Isaac Ng’ang’a Kahiga & another v Republic [2006] eKLR thus:

“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.”

In this case there is evidence that three items belonging to the deceased were recovered, that is the motor vehicle, his jacket and driving licence. The two appellants denied that they were in possession of the items, each of them alleging that he was not arrested in the vehicle but that he was arrested around the area where the vehicle was intercepted and recovered while on his own business. However, there is clear evidence from the police officers PW 3, PW 4 and PW 9 who arrested them that the 1^st appellant was driving the vehicle and also wearing the deceased’s jacket from which the deceased’s driving licence was recovered. The 1^st appellant alleges that he was arrested and charged for slapping a police officer while the 2^nd appellant alleges that he was arrested for no reason at all by police officers whom he apparently dealt with in the course of his work on a daily basis.
Those stories are incredible and I do not believe them just like the learned trial magistrate did not. None of the issues raised in those stories in defence was raised in cross-examination, an indication that they were made up only for purposes of the defences. I have no reason to doubt the evidence of the police officers who intercepted the vehicle and arrested both appellants therein. The evidence by the officers was consistent that the appellants were in the vehicle after it was flagged down, they were ordered out and made to lie down and a search conducted and the other items recovered.
Besides the evidence of the police officers who arrested them red-handed in possession of the recently stolen items, namely the vehicle, the jacket and driving licence all identified as belonging to the deceased person, the appellants contradicted themselves in a material way with respect to how they were arrested when the evidence they adduced in the Thika case is juxtaposed with what they tendered in this case at the trial. I cannot believe their stories that they were innocent victims arrested at the scene where the deceased’s motor vehicle was intercepted and recovered at the weighbridge. I find that they were the ones who were found in possession of the vehicle, the jacket and the driving licence and not any other person.
The trial court relied on the proceedings and findings in the Thika case in its judgment. It found that what the 1^st and 2^nd appellants herein had offered as evidence in their respective defences in the Thika case, on how each was arrested, which was the same time of their arrest in the present case, was markedly different from what they said in their respective defences at the trial herein. In that case, they could not be speaking the truth about the same incident yet offering different versions. The trial court concluded that their respective defences could not be believed and consequently they were dismissed. I have equally considered that evidence and I am in agreement with the learned trial magistrate that the respective defences by the appellants cannot be believed for the same reasons.
Therefore, I am satisfied that the two appellants were found with property recently stolen and belonging to the deceased.
The three items were positively identified as belonging to the deceased and there is no dispute on that issue. No doubt the items had been stolen from the deceased who had them a short while before the appellants were intercepted and arrested with them. The evidential burden then fell upon each of the appellants to explain how he had come by the items within such a short time of the same being robbed from the deceased. Having denied that they were in possession of the said items, and yet there being strong evidence that indeed they were in possession of them, it follows that they had no plausible explanation and the only inference to be made is that they were in illegal possession of them. The illegal possession was by way of violently robbing the deceased and decimating him.
The 3^rd accused person at the trial who was in their company, had what the trial court believed was a plausible explanation for his being present in the vehicle so soon after it had been stolen and so he was acquitted. Even though the learned prosecution counsel believes that he could have had a case against him on appeal, the fact remains that the prosecution did not appeal his acquittal and so the trial court’s findings remain, that his explanation that he was innocent of the charges was valid. I am satisfied and do find as did the learned trial magistrate that the illegal possession of the car, the jacket and the driving licence of the deceased jointly by the two appellants was through theft.
The appellants having been found in possession of property recently stolen from the owner, his body was found in Hohwe dam the following day. Being found with the deceased’s property the same day of his disappearance and without a plausible explanation of the possession leads to the inevitable inference that the appellants were the last persons to be with the deceased. Their failure to explain his being found dead the following day in the manner he was found leads to no other inference other than that they robbed him of his items and killed him either in the process or immediately thereafter. Being two and having used violence against the deceased satisfies the ingredients of the offence of robbery with violence with which they were charged.
The evidence against the appellants was strong even without the evidence of the 3^rd accused person. As it were the evidence of 3^rd accused person was only corroboration of the strong evidence already tendered by the prosecution. It is also the position that the converse that the said accomplice evidence was corroborated by other independent evidence and therefore credible is also valid. In that case, the learned trial magistrate cannot be faulted for relying on the same.
Consequently, I find that the prosecution proved its case on the principal and alternative charges against each of the accused persons beyond a reasonable doubt. I am satisfied that the learned trial magistrate analyzed and evaluated the evidence and applied the law correctly and arrived at the correct conclusion. I therefore find no reason to interfere with her decision.
I am satisfied that the sentence meted out on the appellants was commensurate to the offence charged considering that a life was lost through their callous acts. The only thing this court can do following the Court of Appeal decision in Kisumu Criminal Appeal no 157 of 2017, Frank Turo v Republic (Judgement dated 6/10/2023) (unreported) equated life sentence to a term of thirty years imprisonment is to direct that the appellants shall serve a life imprisonment equivalent to thirty years imprisonment.
With the result that the appeal herein has no merit and is disallowed in its entirety save for the aspect of the indeterminate life sentence.
Orders accordingly.

Dated and delivered at Nyeri on the Virtual Platform, Teams, this 19^th day of September 2024 in the presence of:

1^st appellant present from Nyeri prison.

2^nd appellant present from Nyeri prison.

Kung’u holding brief for Ng’arua for the 2^nd appellant.

Ms Kaniu for the respondent.

Etropia Court assistant.