1. This is an appeal from the conviction and sentence meted out by the Hon. D. Nyakundi given on 21.03.2024 and sentence meted out on 3.06.2024 in Mûkûrwe’inî MCCR E392 of 2023].
2. The Appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the charge were that on 29.09.2023 at around 2300 hours at Muthuthînî village, Gikondi location, Mûkûrwe’inî sub-county, within Nyeri county, robbed Joseph Githaiga, a mobile phone, ITEL A36, valued Ksh. 8,000/= while armed with pangas and slashers at the time of such robbery.
3. The appellant was also charged with handling stolen property contrary to section 322(1) (2) of the penal code. The particulars were that on 1.10.2023 at around 2200 hours at Muthuthînî village, Gikondi location, Mûkûrwe’inî sub-county, within Nyeri county, otherwise than in the course of stealing dishonestly retained a phone ITEL A36 knowing or having reasons to believe it was stolen property.
4. The appellant was tried, convicted and sentenced to death. He filed an undated petition of appeal filed and received at the registry on 10/6/2024 and set forth the following grounds:
a) That, the trial magistrate erred in both matters of law and fact by convicting I the appellant and failing to consider that the circumstances surrounding commission of the offence was not favored caused miscarriage of justice.
b) That the trial magistrate erred in law and fact by failing again to find that there was no alleged exhibit found in my position hence prejudice.
c) That the trial magistrate erred in law and fact by failing again to find that the suspect were alleged to be seven in number but I was only the one who was arrested I do not know the said complainant I never saw him.
d) That the trial magistrate erred in law and fact by convicting me while failing to appreciate that the prosecution evidence was contradicted and uncorroborated.
e) That the trial magistrate erred in law and fact by imposing the death sentence which was declared unconstitutional hence prejudice my right.
f) That trial magistrate erred in law and fact by rejecting my sworn evidence which was not challenged by the prosecution side without cogent reasons to do so.
Evidence and Proceedings
5. The appellant was arraigned in court on 03.10.2023 and pleaded not guilty. He was not released on bond. The appellant had an advocate appointed for him.
6. PW1 was the complainant. He stated that he was heading home and got near a Catholic Church. His home was about 400m from the centre. He saw seven people. Three passed him, two stopped him in the middle of the road, and two others remained behind. The two people asked him for the phone and he declined. One person flashed a panga. Ngura gave him a phone which he called. He used the phone torch to identify the men. He was given the contact to call.
7. The phone was used to identify the men. He saw 7 people, 3 people passed him while 2 people stopped him in the middle of the road. He held the phone to the ear and the man who took the mobile phone passed the other 2 men who stood behind snatched the phone. The men were between 1m-3m from where he was. He went to his brother’s home and told him. The matter was reported at Muthuthînî police station. He told his brother that he recognized the culprit. He recognized Ngura as one of the culprits. He knew Ngura as he was from Muthuthînî shopping Centre.
8. The phone was identified. He stated that the phone was bought three years before at Ksh. 5,700/=. The appellant had been arrested on 1.10.2023. He was called by a fellow mason, who is a cousin. The phone had his child’s photo. They found Francis with the phone. He recorded his statement. The phone was recovered from Ngura. He stated that he was not present when the appellant was arrested.
9. On cross examination he stated that he bought the phone in Nairobi. It is his friend Kamau who bought it. The receipt did not indicate the type and colour of the phone. He stated that he did not know the other man as he had a cap. The appellant had a baseball cap and the appellant stood on his side. Francis also lost his phone. Francis phoned Stephen over the phone found with the photograph of his child.
10. He only recognized Ngura who took the phone. He called the number they gave him but could not remember the number. The accused was in front of him when he started making the phone call. He did not see the cap’s colour.
11. PW2 was Federal Mbuthia from Muthuthînî. He is a brother to PW1. He knew the appellant as Ngura, from Muthuthînî. The appellant alerted him that he was robbed by 7 people near a Catholic Church. Ngura took his phone and disappeared. They were arrested with a panga and a slasher. He was alerted of the incident and also informed family.
12. He was alerted that the appellant was arrested. The phone had a child’s screen saver. They went to Gikondi post and recognized the phone. The wall paper was on the phone though still intact and broken at the centre.
13. He was phoned by Kelvin that the appellant had been arrested. He was arrested by Kevin and his friends. He had not touched the phone. The shop that issued the receipt is in Nyeri from Safaricom Enterprises. He stated that the appellant did not make a phone call at the scene. He stated that it was dark. On re-examination, he stated that he did not know where the phone was bought from.
14. PW3 was PC Duncan Korir of Gikondi Police Station. He stated that the appellant was arrested on 1.10.2023 at 2200 hours. They recovered cannabis from him. He phoned the OCS Mûkûrwe’inî, police station. They were given an Itel phone by 4 men. The phone had a crack. He spoke to PW1 and PW2, but did not interrogate the appellant. He recognised the Itel 36. He identified the appellant in the dock.
15. On cross examination he stated that the phone was recovered by Brian and others, Brian gave him the phone. He could not show the photographs as the phone was off. The phone was not analyzed by the DCI. The complainant keyed in the PIN in their presence and showed photographs. He prepared an inventory that was not signed by anyone. The appellant was arrested by Kevin and Brian. The appellant threw the phone away when he was arrested. PW4 was Brian Mwangi Kimengi from Muthuthînî area.
16. He stated that Francis Maina sought assistance to trace his phone stolen the previous night. They went to Nduma shopping centre. He told them he knew who was in possession of the phone. He asked for the phone and Ndura asked for his mobile phone and fled. They ran after him. They arrested the appellant and escorted them to Gikandi Police Station. They handed him over to the police. They gave their mobile number.
17. The officer put on the phone belonging to PW1 and Francis identified the phone, with PW1’s child on the screen. The officers asked them to track PW. They looked for Stephen Ng’ang’a and asked him to request Githaiga to visit the station. PW1 did not know from whom the phone was recovered. He recognized the phone through the broken screen. He stated on cross examination that the phone belonged to PW1. He did not know Francis’s number.
18. PW5 was PC Peter Kamau from Gakindu Police Post formerly of Muthuthînî Police station. He is the investigating officer. He stated that he received a report that youths seized a phone from PW1. He lodged a complaint at the police post. He was alerted that Ngura had been arrested over a similar incident. He recorded statements. The youth took his phone and disappeared to the forest. The phone was later recovered by Brian and his friends. He was escorted and recorded a statement. The complainant described the phone and identified it. The phone was said to be valued at Ksh 8,000/=. He stated that the receipt indicated it was purchased from Nyeri on 17.04.2021. The appellant was identified in the dock.
19. On cross examination, he stated that he only recorded a statement. It was members of the public who arrested the appellant. He did not record a statement from anyone who arrested the appellant. He did not have OB on re-arresting the appellant. He knew the value of the phone when the appellant was arraigned, when the phone was shown to have been bought in Nyeri and Nairobi. He stated that the phone was not on hence they could not demonstrate in court. In cross examination, he stated that he did not present the phone to the DCI.
20. On re-examination, he stated that he did not investigate the matter. He only recorded statement. He stated that though the pattern is visible, the photo of the complainant’s child could not be seen. The phone was not subjected to analysis. He further stated that he did not present a certificate to present electronic evidence.
21. The appellant was placed on his defence. He stated that he was not found in possession of the phone, he was arrested at 9.00 am. The people who arrested him claimed he had a phone yet he was not found with any phone. On 29.09.2023 he was at home in Murang’a since his parents had relocated to Mwea. From Muthuthînî to Murang’a is about 500km?? He stated that the phone was not switched on and the same was not differentiated with a different phone. He did not commit the offence but was fixed.
22. On cross examination, he stated that he first saw the complainant in court. He does not know whether he came from the same village as he did not cross over to Mûkûrwe’inî. He saw the phone in court and it does not belong to him. He stated that the complainant does not know him. He stated that Maina who arrested him was his cousin and does not know if the complainant holds a grudge.
Impugned Judgment
23. The court found the appeal guilty and sentenced him to death. The prosecutor indicated that the appellant had previously been charged with possession of cannabis, threatening to kill. He was convicted and sentenced. These were the threats he gave when he was arrested in this matter. The appellant indicated that he was aware of the records. The appellant had pleaded guilty in those charges in E393 of 2023. The appellant was consequently sentenced to death on 3.06.2023. This resulted in this appeal.
24. The sentence is convoluted and I cannot tell what sentence appellant is serving. There is an indication of a death sentence, life sentence and 30 years. There appears to be a mixture of both administrative and judicial decision. For reasons I will shortly deal with, I shall not belabour the question of sentence.
Analysis
25. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 stated as follows:-
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
26. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination, as held in the case of Okeno v Republic [1972] EA 32 at 36 where the East Africa Court of Appeal stated on the duty of the Court on a first appeal:
“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., [1957] E. A. 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., [1957] E.A. 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, [1958] E. A. 424.”
27. The issue in this case is whether the prosecution proved its case to the required standards. Within this issue, there are three sub issues, that is:
a. Identification of the appellant
b. Single witness evidence
c. Circumstantial evidence
d. Sentence
28. It must be remembered that the duty to prove a criminal case was on the state. The appellant entered proceedings having the presumption of innocence. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that;
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
29. It must be remembered that an accused enters these proceedings presumed to be innocent. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme Court of Canada explained the standard of proof as doth:-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”
30. The legal burden refers to the burden of proof, which remains constant throughout the trial. It is the obligation of a party to establish the facts and contentions necessary to support its case, in this case the prosecutor. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
31. The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of In re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that:
“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
32. In criminal cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder:
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
33. Reasonable doubt need not reach certainty, but it must carry a high degree of probability. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
34. The first question was possession of the impugned phone. The appellant in his defence raised an issue that the phone was not shown to be the same phone that was stolen. The complainant bought a phone in Nairobi but was issued a receipt in Nyeri. The court did not find anything wrong with this piece of evidence. The phone that was stolen was ITEL A36 valued at Ksh. 8,000/=. The receipt showing the phone had only one IMEI, meaning that it could not carry twin sim cards. The phone was alleged to have been bought in Nyeri as per the receipts but in Nairobi as per the complainant. It is therefore clear that whether or not the impugned phone was recovered from the appellant, it is not the same phone that was allegedly stolen. The investigating officer carried no investigations on the ownership of the allegedly recovered phone.
35. In a rather cavalier manner, he treated the question whether there was forensic analysis of the phone casually. There are two aspects of that phone that needed to be shown. The complainant allegedly ordered the appellant to call a number. There needed to have a call log to confirm that particular aspect. Secondly, there were physical features which were in the phone. They were not recovered or the phone charged for the identification of the phone. Given the doubt as to the ownership of the phone, there needed to be evidence that the particular phone has ever been used by the complainant at all.
36. Thirdly is the issue of recovery of the phone, the evidence of PW5 left a lot to be desired. He indicated he did not record any statement from the persons who recovered the phone. What he did is what is known as shoddy investigations. The only evidence that was recorded by PC Duncan Korir was that he recovered the phone when they arrested the appellant. Unfortunately, this was his word against the appellant. He actually admitted that there were other people. None were called. The phone was not in the person of the appellant. The arresting persons took the law in their own hands and ended up soiling the evidence irredeemably.
37. The court of appeal [A Mbogholi-Msagha, SG Kairu & P Nyamweya, JJA] in the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic [2022] KECA 23 (KLR) , posited as follows regarding recent possession:
21. We have considered the appeal and the submissions. The issues for the determination are: Whether the offence of robbery with violence was proved to the required standard. In that regard there is the question whether the doctrine of recent possession was properly invoked and whether the appellant was positively identified. Secondly, whether the appellant’s right to legal representation was violated. Third, whether this Court should interfere with the sentence meted out.
22. We start with the question whether the doctrine of recent possession was properly invoked. As regards the circumstances under which the doctrine of recent possession may apply, in Athuman Salim Athuman vs. Republic [2016] eKLR, thisCourt held that:
“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how he came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See Malingi V. Republic (1989) KLR 225 H.C and Hassan V. Republic (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga Alias Peter Ng’ang’a Kahiga V. Republic, CR. APP. NO. 272 of 2005, where this Court stated:
“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 the 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 to the other.”
38. As regards the circumstances under which the doctrine of recent possession may apply, in Athuman Salim Athuman v Republic [2016] KECA 697 (KLR), this Court [ Makhandia, Ouko & M’inoti JJ.A. ]held that:
“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how be came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See MALINGI V. REPUBLIC (1989) KLR 225 H.C and HASSAN V. REPUBLIC (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga & another v Republic [2006] KECA 137 (KLR) , where this Court [P.K. Tunoi, S.E.O. Bosire and E.M. Githinji] stated:
“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 the 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 to the other.”
39. From the foregoing, the doctrine of recent the possession has 4 elements. All the 4 elements must converge otherwise the doctrine cannot apply. The court must as of necessity define recent in respect of the easiness of movement of a property. The elements are:
a. The property was found with the suspect.
b. The property is positively the property of the complainant;
c. The property was stolen from the complainant
d. The property was recently stolen from the complainant.
40. In this respect, the complainant stated that his phone, which he bought from Nairobi was stolen. Therefore, the element of stealing was proved. However, there was no element that the property belonged to the complainant, as the phone in court was not shown to be the phone lost during the robbery.
41. Thirdly, it is doubtful, given the break in the chain of custody that the appellant was in possession. Lastly, it is true that a period of three days for a phone can be recent. However, in the absence of possession, the entire edifice breaks and falls. The doctrine of recent possession therefore does not apply in the absence of a chain of custody. I cannot fathom why the complainant and his witnesses could not invoke the police to search and recover from the appellant. Why did the other members not testify? Is there a likelihood that had they testified, their evidence would have been adverse to the prosecution?
42. It must be recalled that there is no number of witnesses required to prove a fact. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows: -
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
43. There is no requirement to call a superfluity of witnesses. However, there must be at least a bare minimum of witnesses to prove a charge. Where key witnesses are not called, and the case is wholly, then an adverse inference must be made for failure to call such. In the circumstances of this case, failure to call the other people who actually saw the appellant with the phone, including one Maina, resulted in a break in the chain of evidence. There is no connecting witness, to the alleged phone. In the case of Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated as follows:
The law, as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even though some of those witnesses’ evidence may be adverse to the prosecution's case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution's case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called, his evidence would have tended to be adverse to the prosecution's case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
44. The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135 , where the court held inter alia :
“The prosecution is not obliged to call a superfluity of witnesses, but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
45. In the circumstances, failure to call Maina and others who saw the appellant with the phone was fatal to the case as the court must make an adverse inference that if he had been called, his evidence would have been adverse to the prosecution.
46. The second aspect is identification of the appellant. PW1 was at pains to explain how he iden
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2. The Appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the charge were that on 29.09.2023 at around 2300 hours at Muthuthînî village, Gikondi location, Mûkûrwe’inî sub-county, within Nyeri county, robbed Joseph Githaiga, a mobile phone, ITEL A36, valued Ksh. 8,000/= while armed with pangas and slashers at the time of such robbery.
3. The appellant was also charged with handling stolen property contrary to section 322(1) (2) of the penal code. The particulars were that on 1.10.2023 at around 2200 hours at Muthuthînî village, Gikondi location, Mûkûrwe’inî sub-county, within Nyeri county, otherwise than in the course of stealing dishonestly retained a phone ITEL A36 knowing or having reasons to believe it was stolen property.
4. The appellant was tried, convicted and sentenced to death. He filed an undated petition of appeal filed and received at the registry on 10/6/2024 and set forth the following grounds:
a) That, the trial magistrate erred in both matters of law and fact by convicting I the appellant and failing to consider that the circumstances surrounding commission of the offence was not favored caused miscarriage of justice.
b) That the trial magistrate erred in law and fact by failing again to find that there was no alleged exhibit found in my position hence prejudice.
c) That the trial magistrate erred in law and fact by failing again to find that the suspect were alleged to be seven in number but I was only the one who was arrested I do not know the said complainant I never saw him.
d) That the trial magistrate erred in law and fact by convicting me while failing to appreciate that the prosecution evidence was contradicted and uncorroborated.
e) That the trial magistrate erred in law and fact by imposing the death sentence which was declared unconstitutional hence prejudice my right.
f) That trial magistrate erred in law and fact by rejecting my sworn evidence which was not challenged by the prosecution side without cogent reasons to do so.
Evidence and Proceedings
5. The appellant was arraigned in court on 03.10.2023 and pleaded not guilty. He was not released on bond. The appellant had an advocate appointed for him.
6. PW1 was the complainant. He stated that he was heading home and got near a Catholic Church. His home was about 400m from the centre. He saw seven people. Three passed him, two stopped him in the middle of the road, and two others remained behind. The two people asked him for the phone and he declined. One person flashed a panga. Ngura gave him a phone which he called. He used the phone torch to identify the men. He was given the contact to call.
7. The phone was used to identify the men. He saw 7 people, 3 people passed him while 2 people stopped him in the middle of the road. He held the phone to the ear and the man who took the mobile phone passed the other 2 men who stood behind snatched the phone. The men were between 1m-3m from where he was. He went to his brother’s home and told him. The matter was reported at Muthuthînî police station. He told his brother that he recognized the culprit. He recognized Ngura as one of the culprits. He knew Ngura as he was from Muthuthînî shopping Centre.
8. The phone was identified. He stated that the phone was bought three years before at Ksh. 5,700/=. The appellant had been arrested on 1.10.2023. He was called by a fellow mason, who is a cousin. The phone had his child’s photo. They found Francis with the phone. He recorded his statement. The phone was recovered from Ngura. He stated that he was not present when the appellant was arrested.
9. On cross examination he stated that he bought the phone in Nairobi. It is his friend Kamau who bought it. The receipt did not indicate the type and colour of the phone. He stated that he did not know the other man as he had a cap. The appellant had a baseball cap and the appellant stood on his side. Francis also lost his phone. Francis phoned Stephen over the phone found with the photograph of his child.
10. He only recognized Ngura who took the phone. He called the number they gave him but could not remember the number. The accused was in front of him when he started making the phone call. He did not see the cap’s colour.
11. PW2 was Federal Mbuthia from Muthuthînî. He is a brother to PW1. He knew the appellant as Ngura, from Muthuthînî. The appellant alerted him that he was robbed by 7 people near a Catholic Church. Ngura took his phone and disappeared. They were arrested with a panga and a slasher. He was alerted of the incident and also informed family.
12. He was alerted that the appellant was arrested. The phone had a child’s screen saver. They went to Gikondi post and recognized the phone. The wall paper was on the phone though still intact and broken at the centre.
13. He was phoned by Kelvin that the appellant had been arrested. He was arrested by Kevin and his friends. He had not touched the phone. The shop that issued the receipt is in Nyeri from Safaricom Enterprises. He stated that the appellant did not make a phone call at the scene. He stated that it was dark. On re-examination, he stated that he did not know where the phone was bought from.
14. PW3 was PC Duncan Korir of Gikondi Police Station. He stated that the appellant was arrested on 1.10.2023 at 2200 hours. They recovered cannabis from him. He phoned the OCS Mûkûrwe’inî, police station. They were given an Itel phone by 4 men. The phone had a crack. He spoke to PW1 and PW2, but did not interrogate the appellant. He recognised the Itel 36. He identified the appellant in the dock.
15. On cross examination he stated that the phone was recovered by Brian and others, Brian gave him the phone. He could not show the photographs as the phone was off. The phone was not analyzed by the DCI. The complainant keyed in the PIN in their presence and showed photographs. He prepared an inventory that was not signed by anyone. The appellant was arrested by Kevin and Brian. The appellant threw the phone away when he was arrested. PW4 was Brian Mwangi Kimengi from Muthuthînî area.
16. He stated that Francis Maina sought assistance to trace his phone stolen the previous night. They went to Nduma shopping centre. He told them he knew who was in possession of the phone. He asked for the phone and Ndura asked for his mobile phone and fled. They ran after him. They arrested the appellant and escorted them to Gikandi Police Station. They handed him over to the police. They gave their mobile number.
17. The officer put on the phone belonging to PW1 and Francis identified the phone, with PW1’s child on the screen. The officers asked them to track PW. They looked for Stephen Ng’ang’a and asked him to request Githaiga to visit the station. PW1 did not know from whom the phone was recovered. He recognized the phone through the broken screen. He stated on cross examination that the phone belonged to PW1. He did not know Francis’s number.
18. PW5 was PC Peter Kamau from Gakindu Police Post formerly of Muthuthînî Police station. He is the investigating officer. He stated that he received a report that youths seized a phone from PW1. He lodged a complaint at the police post. He was alerted that Ngura had been arrested over a similar incident. He recorded statements. The youth took his phone and disappeared to the forest. The phone was later recovered by Brian and his friends. He was escorted and recorded a statement. The complainant described the phone and identified it. The phone was said to be valued at Ksh 8,000/=. He stated that the receipt indicated it was purchased from Nyeri on 17.04.2021. The appellant was identified in the dock.
19. On cross examination, he stated that he only recorded a statement. It was members of the public who arrested the appellant. He did not record a statement from anyone who arrested the appellant. He did not have OB on re-arresting the appellant. He knew the value of the phone when the appellant was arraigned, when the phone was shown to have been bought in Nyeri and Nairobi. He stated that the phone was not on hence they could not demonstrate in court. In cross examination, he stated that he did not present the phone to the DCI.
20. On re-examination, he stated that he did not investigate the matter. He only recorded statement. He stated that though the pattern is visible, the photo of the complainant’s child could not be seen. The phone was not subjected to analysis. He further stated that he did not present a certificate to present electronic evidence.
21. The appellant was placed on his defence. He stated that he was not found in possession of the phone, he was arrested at 9.00 am. The people who arrested him claimed he had a phone yet he was not found with any phone. On 29.09.2023 he was at home in Murang’a since his parents had relocated to Mwea. From Muthuthînî to Murang’a is about 500km?? He stated that the phone was not switched on and the same was not differentiated with a different phone. He did not commit the offence but was fixed.
22. On cross examination, he stated that he first saw the complainant in court. He does not know whether he came from the same village as he did not cross over to Mûkûrwe’inî. He saw the phone in court and it does not belong to him. He stated that the complainant does not know him. He stated that Maina who arrested him was his cousin and does not know if the complainant holds a grudge.
Impugned Judgment
23. The court found the appeal guilty and sentenced him to death. The prosecutor indicated that the appellant had previously been charged with possession of cannabis, threatening to kill. He was convicted and sentenced. These were the threats he gave when he was arrested in this matter. The appellant indicated that he was aware of the records. The appellant had pleaded guilty in those charges in E393 of 2023. The appellant was consequently sentenced to death on 3.06.2023. This resulted in this appeal.
24. The sentence is convoluted and I cannot tell what sentence appellant is serving. There is an indication of a death sentence, life sentence and 30 years. There appears to be a mixture of both administrative and judicial decision. For reasons I will shortly deal with, I shall not belabour the question of sentence.
Analysis
25. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 stated as follows:-
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
26. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination, as held in the case of Okeno v Republic [1972] EA 32 at 36 where the East Africa Court of Appeal stated on the duty of the Court on a first appeal:
“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., [1957] E. A. 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., [1957] E.A. 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, [1958] E. A. 424.”
27. The issue in this case is whether the prosecution proved its case to the required standards. Within this issue, there are three sub issues, that is:
a. Identification of the appellant
b. Single witness evidence
c. Circumstantial evidence
d. Sentence
28. It must be remembered that the duty to prove a criminal case was on the state. The appellant entered proceedings having the presumption of innocence. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that;
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
29. It must be remembered that an accused enters these proceedings presumed to be innocent. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme Court of Canada explained the standard of proof as doth:-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”
30. The legal burden refers to the burden of proof, which remains constant throughout the trial. It is the obligation of a party to establish the facts and contentions necessary to support its case, in this case the prosecutor. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
31. The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of In re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that:
“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
32. In criminal cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder:
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
33. Reasonable doubt need not reach certainty, but it must carry a high degree of probability. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
34. The first question was possession of the impugned phone. The appellant in his defence raised an issue that the phone was not shown to be the same phone that was stolen. The complainant bought a phone in Nairobi but was issued a receipt in Nyeri. The court did not find anything wrong with this piece of evidence. The phone that was stolen was ITEL A36 valued at Ksh. 8,000/=. The receipt showing the phone had only one IMEI, meaning that it could not carry twin sim cards. The phone was alleged to have been bought in Nyeri as per the receipts but in Nairobi as per the complainant. It is therefore clear that whether or not the impugned phone was recovered from the appellant, it is not the same phone that was allegedly stolen. The investigating officer carried no investigations on the ownership of the allegedly recovered phone.
35. In a rather cavalier manner, he treated the question whether there was forensic analysis of the phone casually. There are two aspects of that phone that needed to be shown. The complainant allegedly ordered the appellant to call a number. There needed to have a call log to confirm that particular aspect. Secondly, there were physical features which were in the phone. They were not recovered or the phone charged for the identification of the phone. Given the doubt as to the ownership of the phone, there needed to be evidence that the particular phone has ever been used by the complainant at all.
36. Thirdly is the issue of recovery of the phone, the evidence of PW5 left a lot to be desired. He indicated he did not record any statement from the persons who recovered the phone. What he did is what is known as shoddy investigations. The only evidence that was recorded by PC Duncan Korir was that he recovered the phone when they arrested the appellant. Unfortunately, this was his word against the appellant. He actually admitted that there were other people. None were called. The phone was not in the person of the appellant. The arresting persons took the law in their own hands and ended up soiling the evidence irredeemably.
37. The court of appeal [A Mbogholi-Msagha, SG Kairu & P Nyamweya, JJA] in the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic [2022] KECA 23 (KLR) , posited as follows regarding recent possession:
21. We have considered the appeal and the submissions. The issues for the determination are: Whether the offence of robbery with violence was proved to the required standard. In that regard there is the question whether the doctrine of recent possession was properly invoked and whether the appellant was positively identified. Secondly, whether the appellant’s right to legal representation was violated. Third, whether this Court should interfere with the sentence meted out.
22. We start with the question whether the doctrine of recent possession was properly invoked. As regards the circumstances under which the doctrine of recent possession may apply, in Athuman Salim Athuman vs. Republic [2016] eKLR, thisCourt held that:
“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how he came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See Malingi V. Republic (1989) KLR 225 H.C and Hassan V. Republic (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga Alias Peter Ng’ang’a Kahiga V. Republic, CR. APP. NO. 272 of 2005, where this Court stated:
“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 the 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 to the other.”
38. As regards the circumstances under which the doctrine of recent possession may apply, in Athuman Salim Athuman v Republic [2016] KECA 697 (KLR), this Court [ Makhandia, Ouko & M’inoti JJ.A. ]held that:
“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how be came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See MALINGI V. REPUBLIC (1989) KLR 225 H.C and HASSAN V. REPUBLIC (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga & another v Republic [2006] KECA 137 (KLR) , where this Court [P.K. Tunoi, S.E.O. Bosire and E.M. Githinji] stated:
“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 the 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 to the other.”
39. From the foregoing, the doctrine of recent the possession has 4 elements. All the 4 elements must converge otherwise the doctrine cannot apply. The court must as of necessity define recent in respect of the easiness of movement of a property. The elements are:
a. The property was found with the suspect.
b. The property is positively the property of the complainant;
c. The property was stolen from the complainant
d. The property was recently stolen from the complainant.
40. In this respect, the complainant stated that his phone, which he bought from Nairobi was stolen. Therefore, the element of stealing was proved. However, there was no element that the property belonged to the complainant, as the phone in court was not shown to be the phone lost during the robbery.
41. Thirdly, it is doubtful, given the break in the chain of custody that the appellant was in possession. Lastly, it is true that a period of three days for a phone can be recent. However, in the absence of possession, the entire edifice breaks and falls. The doctrine of recent possession therefore does not apply in the absence of a chain of custody. I cannot fathom why the complainant and his witnesses could not invoke the police to search and recover from the appellant. Why did the other members not testify? Is there a likelihood that had they testified, their evidence would have been adverse to the prosecution?
42. It must be recalled that there is no number of witnesses required to prove a fact. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows: -
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
43. There is no requirement to call a superfluity of witnesses. However, there must be at least a bare minimum of witnesses to prove a charge. Where key witnesses are not called, and the case is wholly, then an adverse inference must be made for failure to call such. In the circumstances of this case, failure to call the other people who actually saw the appellant with the phone, including one Maina, resulted in a break in the chain of evidence. There is no connecting witness, to the alleged phone. In the case of Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated as follows:
The law, as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even though some of those witnesses’ evidence may be adverse to the prosecution's case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution's case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called, his evidence would have tended to be adverse to the prosecution's case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
44. The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135 , where the court held inter alia :
“The prosecution is not obliged to call a superfluity of witnesses, but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
45. In the circumstances, failure to call Maina and others who saw the appellant with the phone was fatal to the case as the court must make an adverse inference that if he had been called, his evidence would have been adverse to the prosecution.
46. The second aspect is identification of the appellant. PW1 was at pains to explain how he iden
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