(Being an appeal from original conviction and sentence in Kwale Magistrates Court Criminal Case No. 1116 of 2018 delivered on 29/11/2022 by Hon. Omido, J.M. SPM)
J U D G M E N T
1. The appellant, Joseph Oluoch Odhiambo was charged with another who was acquitted after full hearing, for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya. The appellant was convicted and sentenced to death. The particulars of the charge were that on 6/11/2018 at 0045 Hours at Villa la Spa within Kajiado area in Diani location, Msambweni Sub-County in Kwale County within Coast region, with others not before court being armed with crude weapons namely crowbar, pangas, iron bar and big stone block, robbed Karl Salzmann of KShs 150,000/=, 300 Euros, Philips projector model px3410 s/no *253527400, valued at 2,800/= Euros, iPad mini valued at 600/= Euros, iPhone 5 valued at 500/= Euros, iPhone 6 valued at 700/= Euros, iPhone 8 valued at 800/= Euros, watch prs valued at 1,800/= Euros, Apple Notebook valued at 300/= Euros, Huawei pad valued at 600/= Euros, Samsung J6 valued at 35,000/=, Lenovo laptop valued at KShs 45,000/=, HP laptop valued at KShs 38,000/=, golden ring valued at 500/= Euros, wedding ring valued at KShs 40,000/=, 2 credit cards, ID card, Adidas sports shoes and two belts all valued at 1,041,500/= at the time of such robbery used personal violence to the said Karl Salzmann, a German national.
2. He was charged in the alternative with handling stolen property contrary to section 322(1) and (2) (the statute was not indicated). Particulars were that the appellant and the other person on 20/12/2018 at Maweni area, Likoni Sub-County in Mombasa County within Coast region, otherwise than in the course of stealing retained one Philips projector model ppx3410 s/no. *253527480 reasons to believe them to be stolen goods (sic).
3. The prosecution called five witnesses to support its case. PW 1, Karl Salzman, was the complainant; PW 2, Judith Chao Vallery Mwashumbe, is the complainant’s wife; PW 3, Cpl Isaac Ong’ondo was the arresting officer, PW 4, IP Titus Kyalo was a parade officer; PW 5, Cpl Kana Wario was the investigating officer.
4. In defence the appellant made an unsworn statement and did not call a witness nor tender any other evidence.
5. After hearing the case and evaluating the evidence and submissions by the parties, the learned trial magistrate found the appellant guilty and convicted him of the principal charge of robbery with violence and sentenced him to death. His co-accused was however acquitted of both charges.
6. The appellant was dissatisfied with the trial court’s decision, and he has moved to this court on appeal based on the grounds outlined in his undated amended grounds of appeal which are as follows:
i. The learned trial magistrate erred in law and fact for not considering that the issue of visual identification was under stressful circumstances which would not allow an ample opportunity for a positive identification.
ii. The learned trial magistrate erred in law and fact for not observing that the issue of the parade was not studiously approached as it failed to comply with the required regulation stipulated in chapter 36 of the parade forces standing orders (sic).
iii. The learned trial magistrate erred in law and fact for not noting that the disappearing of the alleged projector and its recovery rested on entirely on fabrications and anchored on unfounded facts.
iv. The learned trial magistrate erred in law and fact for basing the conviction entirely on the recovery of the alleged projector which he presumed it to hang on the doctrine of recent possession without considering the time elapsed to its recovery.
v. The learned trial magistrate erred in law and fact for failing to observe that the onus of proving the case fully rested on the prosecution which was its obligation to prove the case beyond a reasonable doubt as required by law.
vi. The learned trial magistrate erred in law and fact for not considering the defence by the appellant which was not vitiated by the prosecution.
7. The appellant therefore prays that the appeal be allowed, the conviction quashed and the sentence set aside.
8. The respondent opposed the appeal by way of submissions.
9. The appeal was heard by way of written submissions filed by the appellant and the respondent.
10. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
11. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
12. The prosecution’s case was that on the night of 6/11/2018 at around midnight three men went to the house of the complainant PW 1 who stayed with his wife PW 2 and broke the terrace glass door to the house using a big stone (Exh. 1). There were lights on outside and inside the house throughout. The robbers entered the house and beat up the complainant as they demanded for cash. PW 2 took their baby and went to hide in the toilet. The robbers demanded the key to the safe. PW 1 told them he did not have it. It was in another office. They beat him up, forced him to the floor and stamped his chest and head with their feet. The robbers broke the door of the safe from which they took from the safe money KShs 150,000/= and Euros and a projector which was in a box. They removed the projector from the box which they left behind. They also collected various items from the house among them laptops, mobile phones and a watch.
13. There was a security guard outside who had been beaten by the robbers and gone into hiding after alerting the complainant and his wife. The guard had also pressed the alarm for SGA security company. The complainant had also pressed the alarm and called a police officer called Tony. The SGA security officers and police officers responded but the robbers had left.
14. Later, on 16/12/2018, a national identification card (ID) bearing the name of Joseph Oluoch Odhiambo, the appellant was recovered in a thicket after police had been alerted of a robbery at Sheba hotel along Diani beach. He was later traced using the ID card through the mobile phone number registered against it 0745629044. The projector stolen from the complainant’s house in the safe was recovered from the appellant’s residence. He had no satisfactory explanation of how he came about it. He was arrested together with his co-accused with whom they were staying. An ID parade was conducted and PW 2 identified the appellant and his co-accused person as among the robbers who were at their house on the material night. PW 1 also said in evidence that he had clearly identified the two on the material night as the lights were on throughout during the incident.
15. The learned trial magistrate found that the ID parades did not comply with the law and therefore no proper identification of the appellant and his co-accused person could have been achieved evidence of identification.
16. However, the learned trial magistrate was satisfied that the appellant was found in possession of recently stolen property, that is, the projector that was stolen from the complainant’s house on the material night and he had no convincing explanation of how he had come by the projector. Given that his national ID card had been recovered on a trail following a subsequent robbery, the learned trial magistrate was satisfied that there was an unbroken chain leading to the appellant being at the scene of the robbery herein and the recovery of the projector at his residence. He was therefore found guilty of the offence of robbery with violence.
17. I have considered and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submissions filed by learned counsels for the parties.
18. The issue for determination is whether or not there was evidence sufficient to reach a verdict of guilty against the appellant herein on the charge of robbery with violence by the learned trial magistrate.
19. In order to prove the offence of robbery with violence the prosecution was required to prove any of the following circumstances as enunciated by the Court of Appeal in the case of Johana Ndungu vs. Republic [1996] eKLR thus:
“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of the penal code 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:
i. If the offender is armed with any dangerous or offensive weapon or instrument; or
ii. If he is in company with one or more other person or persons; or
iii. 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.”
20. In the present case, the evidence, as analyzed above, showed that there was a theft of money, electronic goods, mobile phones, a watch, a ring and notably the projector. The prosecution’s case turned on the positive identification of the robbers by the complainant and his wife as well as the recovery of the projector in the possession of the appellant. There was also evidence that there were at least three robbers; and that the assailants used a dangerous weapon, a stone to break into the house and they used personal violence against the complainant by beating him up as they demanded for money and the keys to the safe and by pinning him to the ground. Each of the disjunctive elements of the offence of robbery with violence that could lead to a conviction was established.
21. The learned trial magistrate found that the evidence of identification parade by the complainant’s wife, PW 2 had not been sufficiently established and could not be relied upon. Bereft of the direct evidence of identification, the trial court was left with the circumstantial evidence of the recent possession of the projector by the appellant.
22. The Court of Appeal, in the case of Eric Otieno Arum v Republic [2006] eKLR summarized the essential elements of the doctrine of recent possession as follows:
“In our view, 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 person to the other.
Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. This burden is evidential only and does not relieve the prosecution from proving its case to the required standard. That explanation need only be a plausible.”
23. The Court of Appeal, in David Mugo Kimunge v Republic [2015] eKLR cited with approval, the Supreme Court of Canada’s case in R v Kowlyk (1988) 2 SCR 59 while explaining the doctrine of recent possession where the said Canadian apex court held as follows:
“Upon proof of the unexplained possession of recently stolen property, the trier of fact may - but not must - draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.”
24. The appellant has contested the evidence that he was in recent possession of the projector, from all fronts, and submitted that it was never proved. In his submissions, he attacked that evidence on various fronts that:
i. there was no proof that the projector was stolen from the complainant’s house for two reasons. First that PW 2 said that the safe in which the projector was kept was not broken into and second that the serial number on the projector allegedly recovered from his residence (which fact he denied) being number px3410 s/no *253527400 was different from the serial number on the box provided by the complainant as the one in which the projector had been removed being 253527480. Thus, there was a difference on the second last digit 0 and 8.
ii. there was no evidence to prove that the appellant resided in the house where the projector produced in evidence was recovered.
iii. on the alleged recovery of the projector, he said that the inventory was prepared out of his sight as evidenced from the fact that other than him writing his name at the preamble, he never signed it.
25. I will first consider whether the prosecution proved that the projector was positively the property of the complainant; that it was stolen from the complainant, and that it was recently stolen from the complainant and then whether it was found with the appellant.
26. On the appellant’s contention that PW 2 said that the safe in which the projector was kept was not broken, I note that she said so in cross-examination. However, in her evidence in chief, she said that the safe was broken into. Even then, her initial evidence that the safe was broken into was supported by that of PW 1. But more importantly, she said in her evidence in chief and in cross-examination that the projector was stolen. Her evidence that the projector was stolen was therefore consistent. Her cross-examination came almost three years after her examination in chief. The fallibility of human memory cannot be discounted here.
27. The appellant also contends that the serial number on the projector *253527400 was different from the serial number on the box provided by the complainant as the one in which the projector had been removed being 253527480. Thus, according to the appellant there was a difference on the second last digits 0 and 8. I have gone through the proceedings and I do not seem to see this disparity. all the same, the disparity if there was, would be attributed to a writing error by the learned trial magistrate or by the typist who typed the proceedings. But as I have said, I did not find it in the proceedings. Otherwise, if it was indeed an issue, the appellant never raised it in cross-examination where the same would have been easily ascertained.
28. I am satisfied that the projector that was produced in court was positively identified by the complainant and PW 2 as belonging to them and that it had been stolen from their house during the time of the robbery and therefore it was recently stolen.
29. The next issue is whether the evidence that the appellant was found in possession of the projector was foolproof.
30. It is the appellant’s contention that the date of forwarding the letter requesting for data from Safaricom is dated 15/12/2018 a day before his ID card was recovered which could not have been the case save for the fact that the case was cooked up against him. His testimony was that he was arrested by police officers on allegations that he was seated in a bar with a woman who was a corporal’s girlfriend. They tortured him, and took his wallet which had his national ID card among other items. He was later joined with the other co-accused and taken to Kinondo forest where police officers teased them with death by telling them to say their last prayers. The police officers then turned around and collected some items from a dust bin and took them back to Diani police station.
31. The appellant also submits that there was no evidence from Safaricom Limited to prove that his ID card was connected to the mobile phone line that the police used to track him that this evidence was improperly admitted. I note that the learned trial magistrate observed in the judgment that the report from Safaricom was not produced in evidence.
32. Having reviewed the evidence, I find that although it would have added some weight to the prosecution’s case, it was not necessary to produce this data from Safaricom to prove that the appellant was using the mobile phone that was used to track him. What was important was the recovery of the projector. I can equate this to the evidence of a police informer who provides crucial evidence that leads to the arrest and prosecution of a suspect but his or her identity remains anonymous and many courts have held that the identity of an informant, where desirable, can be kept confidential, even though the practice is not universal.
33. As to whether the house where the projector was recovered belonged to the appellant, the arresting officer gave evidence that on the material day, the appellant took them to the house where they retrieved the projector. It is also important to note that during cross-examination, it was never disputed that this was his residence. Thus, even without evidence of his landlord or people who knew him to reside there, the fact of him leading the police officers there was sufficient evidence that it was his residence.
34. It is apparent that the evidence against the appellant was wholly circumstantial. In order to found a conviction based on such evidence, this court as the the trial court needed to be satisfied as was stated in the case of Kipkering Arap Koskei & Another v. R (1949) 16 EACA 135, a locus classicus case of reliance on circumstantial evidence in our jurisdiction that for guilt to be inferred from circumstantial evidence the “... the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, …”
35. The appellant contents that the case was made up against him but he offers no basis for that contention at all. He alleged in his defence that he was arrested because he was sitting with a lady whom the officers who arrested him said was a girlfriend to a corporal. He did not name the corporal or the lady at all. I find that those assertions were baseless, and the learned trial magistrate correctly found so.
36. The appellant said in his testimony that the police officers took them to Kinondo forest, threatened them with shooting and afterwards, collected some items from a dust bin and took them back to Diani police station. That they went to Kinondo with police officers supports the evidence of PW 2 that the appellant and his colleague told the officers that they had left in a thicket at Kinondo and indeed, a jungle jacket and toy pistol were recovered there. I believe this is what the appellant meant when he said that police collected something from a dust bin within the forest and they went back to the police station. In the circumstances, I find that his assertion of the charges being planted against him has no basis as his own testimony confirms the police story that he co-operated with them in the investigations and led them to recover crucial items linking him to commission of offences, the present once among them.
37. In the case of Republic v Mohammed & another [2019] KESC 48 (KLR) the Supreme Court, considering the issue of recovery of exhibits upon the accused person volunteering information to the police during investigations held that:
“It was a common practice and standard operating procedure in the criminal investigations for the police to confront the suspects with any report they received about the suspects’ commission or involvement in the commission of a crime and demand an explanation. If the explanation the suspect gave led to the discovery of further evidence or exhibits, the evidence should be admitted though with corroboration for a conviction to be sustained.”
38. In this case, the appellant was confronted with information of his national identity card having been recovered near a scene of crime recently committed. He then took the police officers to his residence where items stolen in an earlier robbery against the complainant herein were recovered. I am satisfied that in this case, the chain of events from the time of that robbery to the recovery of the projector from the appellant’s residence and eventual identification of the same was not broken. A robbery was committed at the complainant’s house on 6/11/2018 and among the items stolen was a projector. However, the box housing the projector and bearing the serial number was left behind. On 14/12/2018, another robbery was committed at Sheba hotel during the night. As police officers were pursuing the suspects, they recovered a wallet with among other items, the appellant’s national identity card and a sim card holder which bore a phone number 0745 629 044 which was registered in the name of the appellant. This information was used to trace the appellant to the place where he was arrested. Although the sim card and mobile phone he was using were not produced as exhibits in the case, it was never discounted that the number was registered in his name and he was using it at the time. On 16/12/2018, a projector was recovered from the appellant’s residence where he led police officers. The serial number on the projector and on the box left in the complainant’s house were identical. The appellant offered no explanation of the projector being at his residence but says that all this was a frame up, yet besides leading the police to recover the projector, he also led them to recover other items used in commission of robberies, namely a police jungle jacket and toy gun within the same area that the robbery against the complainant was committed. That was an unbroken chain of events leading to the conclusion that the inculpatory facts could not be explained upon any other reasonable hypothesis other than that the appellant was one of the robbers in the case herein.
39. I have read the judgment and I note that the learned trial magistrate did not say anything about the evidence of identification tendered by the complainant, PW 1. The complainant was emphatic that he identified the robbers. They were only three. They were not masked or covered with anything that would obscure their identity. There was sufficient lighting. He saw them through the glass window as they came in and they engaged him demanding for money before they made him to lie down and stepping on him. There was lighting in the house throughout. Therefore, although the conditions were distressing, there is nothing to show that the complainant was shocked to a point that he could not see the robbers properly. His evidence of identification of the robbers was not challenged either by circumstances obtaining at the time or by the defence evidence. In that case, the fact that he declined to take part in the identification parade cannot mean that he could not identify the robbers. I would therefore find that his evidence that he identified the appellant was credible, trustworthy and reliable and corroborates the evidence of recent possession of the projector by the appellant.
40. Ultimately, I find that the trial court’s conviction was sound and is affirmed.
41. Since the Appellant’s appeal was largely based on the grievance of his conviction and since the sentence of death meted was that prescribed by law and as guided by the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 4 others [2021] KESC 31 (KLR), I see no reason to interfere with the same.
42. Consequently, the appeal is dismissed on both conviction and sentence.
43. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court at Kwale this 19th day of March 2025 in the presence of:
The appellant in person from Shimo la Tewa prison.
Ms Vallerie for the respondent.
Johnson: court assistant.
J U D G M E N T
1. The appellant, Joseph Oluoch Odhiambo was charged with another who was acquitted after full hearing, for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya. The appellant was convicted and sentenced to death. The particulars of the charge were that on 6/11/2018 at 0045 Hours at Villa la Spa within Kajiado area in Diani location, Msambweni Sub-County in Kwale County within Coast region, with others not before court being armed with crude weapons namely crowbar, pangas, iron bar and big stone block, robbed Karl Salzmann of KShs 150,000/=, 300 Euros, Philips projector model px3410 s/no *253527400, valued at 2,800/= Euros, iPad mini valued at 600/= Euros, iPhone 5 valued at 500/= Euros, iPhone 6 valued at 700/= Euros, iPhone 8 valued at 800/= Euros, watch prs valued at 1,800/= Euros, Apple Notebook valued at 300/= Euros, Huawei pad valued at 600/= Euros, Samsung J6 valued at 35,000/=, Lenovo laptop valued at KShs 45,000/=, HP laptop valued at KShs 38,000/=, golden ring valued at 500/= Euros, wedding ring valued at KShs 40,000/=, 2 credit cards, ID card, Adidas sports shoes and two belts all valued at 1,041,500/= at the time of such robbery used personal violence to the said Karl Salzmann, a German national.
2. He was charged in the alternative with handling stolen property contrary to section 322(1) and (2) (the statute was not indicated). Particulars were that the appellant and the other person on 20/12/2018 at Maweni area, Likoni Sub-County in Mombasa County within Coast region, otherwise than in the course of stealing retained one Philips projector model ppx3410 s/no. *253527480 reasons to believe them to be stolen goods (sic).
3. The prosecution called five witnesses to support its case. PW 1, Karl Salzman, was the complainant; PW 2, Judith Chao Vallery Mwashumbe, is the complainant’s wife; PW 3, Cpl Isaac Ong’ondo was the arresting officer, PW 4, IP Titus Kyalo was a parade officer; PW 5, Cpl Kana Wario was the investigating officer.
4. In defence the appellant made an unsworn statement and did not call a witness nor tender any other evidence.
5. After hearing the case and evaluating the evidence and submissions by the parties, the learned trial magistrate found the appellant guilty and convicted him of the principal charge of robbery with violence and sentenced him to death. His co-accused was however acquitted of both charges.
6. The appellant was dissatisfied with the trial court’s decision, and he has moved to this court on appeal based on the grounds outlined in his undated amended grounds of appeal which are as follows:
i. The learned trial magistrate erred in law and fact for not considering that the issue of visual identification was under stressful circumstances which would not allow an ample opportunity for a positive identification.
ii. The learned trial magistrate erred in law and fact for not observing that the issue of the parade was not studiously approached as it failed to comply with the required regulation stipulated in chapter 36 of the parade forces standing orders (sic).
iii. The learned trial magistrate erred in law and fact for not noting that the disappearing of the alleged projector and its recovery rested on entirely on fabrications and anchored on unfounded facts.
iv. The learned trial magistrate erred in law and fact for basing the conviction entirely on the recovery of the alleged projector which he presumed it to hang on the doctrine of recent possession without considering the time elapsed to its recovery.
v. The learned trial magistrate erred in law and fact for failing to observe that the onus of proving the case fully rested on the prosecution which was its obligation to prove the case beyond a reasonable doubt as required by law.
vi. The learned trial magistrate erred in law and fact for not considering the defence by the appellant which was not vitiated by the prosecution.
7. The appellant therefore prays that the appeal be allowed, the conviction quashed and the sentence set aside.
8. The respondent opposed the appeal by way of submissions.
9. The appeal was heard by way of written submissions filed by the appellant and the respondent.
10. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
11. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
12. The prosecution’s case was that on the night of 6/11/2018 at around midnight three men went to the house of the complainant PW 1 who stayed with his wife PW 2 and broke the terrace glass door to the house using a big stone (Exh. 1). There were lights on outside and inside the house throughout. The robbers entered the house and beat up the complainant as they demanded for cash. PW 2 took their baby and went to hide in the toilet. The robbers demanded the key to the safe. PW 1 told them he did not have it. It was in another office. They beat him up, forced him to the floor and stamped his chest and head with their feet. The robbers broke the door of the safe from which they took from the safe money KShs 150,000/= and Euros and a projector which was in a box. They removed the projector from the box which they left behind. They also collected various items from the house among them laptops, mobile phones and a watch.
13. There was a security guard outside who had been beaten by the robbers and gone into hiding after alerting the complainant and his wife. The guard had also pressed the alarm for SGA security company. The complainant had also pressed the alarm and called a police officer called Tony. The SGA security officers and police officers responded but the robbers had left.
14. Later, on 16/12/2018, a national identification card (ID) bearing the name of Joseph Oluoch Odhiambo, the appellant was recovered in a thicket after police had been alerted of a robbery at Sheba hotel along Diani beach. He was later traced using the ID card through the mobile phone number registered against it 0745629044. The projector stolen from the complainant’s house in the safe was recovered from the appellant’s residence. He had no satisfactory explanation of how he came about it. He was arrested together with his co-accused with whom they were staying. An ID parade was conducted and PW 2 identified the appellant and his co-accused person as among the robbers who were at their house on the material night. PW 1 also said in evidence that he had clearly identified the two on the material night as the lights were on throughout during the incident.
15. The learned trial magistrate found that the ID parades did not comply with the law and therefore no proper identification of the appellant and his co-accused person could have been achieved evidence of identification.
16. However, the learned trial magistrate was satisfied that the appellant was found in possession of recently stolen property, that is, the projector that was stolen from the complainant’s house on the material night and he had no convincing explanation of how he had come by the projector. Given that his national ID card had been recovered on a trail following a subsequent robbery, the learned trial magistrate was satisfied that there was an unbroken chain leading to the appellant being at the scene of the robbery herein and the recovery of the projector at his residence. He was therefore found guilty of the offence of robbery with violence.
17. I have considered and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submissions filed by learned counsels for the parties.
18. The issue for determination is whether or not there was evidence sufficient to reach a verdict of guilty against the appellant herein on the charge of robbery with violence by the learned trial magistrate.
19. In order to prove the offence of robbery with violence the prosecution was required to prove any of the following circumstances as enunciated by the Court of Appeal in the case of Johana Ndungu vs. Republic [1996] eKLR thus:
“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of the penal code 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:
i. If the offender is armed with any dangerous or offensive weapon or instrument; or
ii. If he is in company with one or more other person or persons; or
iii. 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.”
20. In the present case, the evidence, as analyzed above, showed that there was a theft of money, electronic goods, mobile phones, a watch, a ring and notably the projector. The prosecution’s case turned on the positive identification of the robbers by the complainant and his wife as well as the recovery of the projector in the possession of the appellant. There was also evidence that there were at least three robbers; and that the assailants used a dangerous weapon, a stone to break into the house and they used personal violence against the complainant by beating him up as they demanded for money and the keys to the safe and by pinning him to the ground. Each of the disjunctive elements of the offence of robbery with violence that could lead to a conviction was established.
21. The learned trial magistrate found that the evidence of identification parade by the complainant’s wife, PW 2 had not been sufficiently established and could not be relied upon. Bereft of the direct evidence of identification, the trial court was left with the circumstantial evidence of the recent possession of the projector by the appellant.
22. The Court of Appeal, in the case of Eric Otieno Arum v Republic [2006] eKLR summarized the essential elements of the doctrine of recent possession as follows:
“In our view, 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 person to the other.
Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. This burden is evidential only and does not relieve the prosecution from proving its case to the required standard. That explanation need only be a plausible.”
23. The Court of Appeal, in David Mugo Kimunge v Republic [2015] eKLR cited with approval, the Supreme Court of Canada’s case in R v Kowlyk (1988) 2 SCR 59 while explaining the doctrine of recent possession where the said Canadian apex court held as follows:
“Upon proof of the unexplained possession of recently stolen property, the trier of fact may - but not must - draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.”
24. The appellant has contested the evidence that he was in recent possession of the projector, from all fronts, and submitted that it was never proved. In his submissions, he attacked that evidence on various fronts that:
i. there was no proof that the projector was stolen from the complainant’s house for two reasons. First that PW 2 said that the safe in which the projector was kept was not broken into and second that the serial number on the projector allegedly recovered from his residence (which fact he denied) being number px3410 s/no *253527400 was different from the serial number on the box provided by the complainant as the one in which the projector had been removed being 253527480. Thus, there was a difference on the second last digit 0 and 8.
ii. there was no evidence to prove that the appellant resided in the house where the projector produced in evidence was recovered.
iii. on the alleged recovery of the projector, he said that the inventory was prepared out of his sight as evidenced from the fact that other than him writing his name at the preamble, he never signed it.
25. I will first consider whether the prosecution proved that the projector was positively the property of the complainant; that it was stolen from the complainant, and that it was recently stolen from the complainant and then whether it was found with the appellant.
26. On the appellant’s contention that PW 2 said that the safe in which the projector was kept was not broken, I note that she said so in cross-examination. However, in her evidence in chief, she said that the safe was broken into. Even then, her initial evidence that the safe was broken into was supported by that of PW 1. But more importantly, she said in her evidence in chief and in cross-examination that the projector was stolen. Her evidence that the projector was stolen was therefore consistent. Her cross-examination came almost three years after her examination in chief. The fallibility of human memory cannot be discounted here.
27. The appellant also contends that the serial number on the projector *253527400 was different from the serial number on the box provided by the complainant as the one in which the projector had been removed being 253527480. Thus, according to the appellant there was a difference on the second last digits 0 and 8. I have gone through the proceedings and I do not seem to see this disparity. all the same, the disparity if there was, would be attributed to a writing error by the learned trial magistrate or by the typist who typed the proceedings. But as I have said, I did not find it in the proceedings. Otherwise, if it was indeed an issue, the appellant never raised it in cross-examination where the same would have been easily ascertained.
28. I am satisfied that the projector that was produced in court was positively identified by the complainant and PW 2 as belonging to them and that it had been stolen from their house during the time of the robbery and therefore it was recently stolen.
29. The next issue is whether the evidence that the appellant was found in possession of the projector was foolproof.
30. It is the appellant’s contention that the date of forwarding the letter requesting for data from Safaricom is dated 15/12/2018 a day before his ID card was recovered which could not have been the case save for the fact that the case was cooked up against him. His testimony was that he was arrested by police officers on allegations that he was seated in a bar with a woman who was a corporal’s girlfriend. They tortured him, and took his wallet which had his national ID card among other items. He was later joined with the other co-accused and taken to Kinondo forest where police officers teased them with death by telling them to say their last prayers. The police officers then turned around and collected some items from a dust bin and took them back to Diani police station.
31. The appellant also submits that there was no evidence from Safaricom Limited to prove that his ID card was connected to the mobile phone line that the police used to track him that this evidence was improperly admitted. I note that the learned trial magistrate observed in the judgment that the report from Safaricom was not produced in evidence.
32. Having reviewed the evidence, I find that although it would have added some weight to the prosecution’s case, it was not necessary to produce this data from Safaricom to prove that the appellant was using the mobile phone that was used to track him. What was important was the recovery of the projector. I can equate this to the evidence of a police informer who provides crucial evidence that leads to the arrest and prosecution of a suspect but his or her identity remains anonymous and many courts have held that the identity of an informant, where desirable, can be kept confidential, even though the practice is not universal.
33. As to whether the house where the projector was recovered belonged to the appellant, the arresting officer gave evidence that on the material day, the appellant took them to the house where they retrieved the projector. It is also important to note that during cross-examination, it was never disputed that this was his residence. Thus, even without evidence of his landlord or people who knew him to reside there, the fact of him leading the police officers there was sufficient evidence that it was his residence.
34. It is apparent that the evidence against the appellant was wholly circumstantial. In order to found a conviction based on such evidence, this court as the the trial court needed to be satisfied as was stated in the case of Kipkering Arap Koskei & Another v. R (1949) 16 EACA 135, a locus classicus case of reliance on circumstantial evidence in our jurisdiction that for guilt to be inferred from circumstantial evidence the “... the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, …”
35. The appellant contents that the case was made up against him but he offers no basis for that contention at all. He alleged in his defence that he was arrested because he was sitting with a lady whom the officers who arrested him said was a girlfriend to a corporal. He did not name the corporal or the lady at all. I find that those assertions were baseless, and the learned trial magistrate correctly found so.
36. The appellant said in his testimony that the police officers took them to Kinondo forest, threatened them with shooting and afterwards, collected some items from a dust bin and took them back to Diani police station. That they went to Kinondo with police officers supports the evidence of PW 2 that the appellant and his colleague told the officers that they had left in a thicket at Kinondo and indeed, a jungle jacket and toy pistol were recovered there. I believe this is what the appellant meant when he said that police collected something from a dust bin within the forest and they went back to the police station. In the circumstances, I find that his assertion of the charges being planted against him has no basis as his own testimony confirms the police story that he co-operated with them in the investigations and led them to recover crucial items linking him to commission of offences, the present once among them.
37. In the case of Republic v Mohammed & another [2019] KESC 48 (KLR) the Supreme Court, considering the issue of recovery of exhibits upon the accused person volunteering information to the police during investigations held that:
“It was a common practice and standard operating procedure in the criminal investigations for the police to confront the suspects with any report they received about the suspects’ commission or involvement in the commission of a crime and demand an explanation. If the explanation the suspect gave led to the discovery of further evidence or exhibits, the evidence should be admitted though with corroboration for a conviction to be sustained.”
38. In this case, the appellant was confronted with information of his national identity card having been recovered near a scene of crime recently committed. He then took the police officers to his residence where items stolen in an earlier robbery against the complainant herein were recovered. I am satisfied that in this case, the chain of events from the time of that robbery to the recovery of the projector from the appellant’s residence and eventual identification of the same was not broken. A robbery was committed at the complainant’s house on 6/11/2018 and among the items stolen was a projector. However, the box housing the projector and bearing the serial number was left behind. On 14/12/2018, another robbery was committed at Sheba hotel during the night. As police officers were pursuing the suspects, they recovered a wallet with among other items, the appellant’s national identity card and a sim card holder which bore a phone number 0745 629 044 which was registered in the name of the appellant. This information was used to trace the appellant to the place where he was arrested. Although the sim card and mobile phone he was using were not produced as exhibits in the case, it was never discounted that the number was registered in his name and he was using it at the time. On 16/12/2018, a projector was recovered from the appellant’s residence where he led police officers. The serial number on the projector and on the box left in the complainant’s house were identical. The appellant offered no explanation of the projector being at his residence but says that all this was a frame up, yet besides leading the police to recover the projector, he also led them to recover other items used in commission of robberies, namely a police jungle jacket and toy gun within the same area that the robbery against the complainant was committed. That was an unbroken chain of events leading to the conclusion that the inculpatory facts could not be explained upon any other reasonable hypothesis other than that the appellant was one of the robbers in the case herein.
39. I have read the judgment and I note that the learned trial magistrate did not say anything about the evidence of identification tendered by the complainant, PW 1. The complainant was emphatic that he identified the robbers. They were only three. They were not masked or covered with anything that would obscure their identity. There was sufficient lighting. He saw them through the glass window as they came in and they engaged him demanding for money before they made him to lie down and stepping on him. There was lighting in the house throughout. Therefore, although the conditions were distressing, there is nothing to show that the complainant was shocked to a point that he could not see the robbers properly. His evidence of identification of the robbers was not challenged either by circumstances obtaining at the time or by the defence evidence. In that case, the fact that he declined to take part in the identification parade cannot mean that he could not identify the robbers. I would therefore find that his evidence that he identified the appellant was credible, trustworthy and reliable and corroborates the evidence of recent possession of the projector by the appellant.
40. Ultimately, I find that the trial court’s conviction was sound and is affirmed.
41. Since the Appellant’s appeal was largely based on the grievance of his conviction and since the sentence of death meted was that prescribed by law and as guided by the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 4 others [2021] KESC 31 (KLR), I see no reason to interfere with the same.
42. Consequently, the appeal is dismissed on both conviction and sentence.
43. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court at Kwale this 19th day of March 2025 in the presence of:
The appellant in person from Shimo la Tewa prison.
Ms Vallerie for the respondent.
Johnson: court assistant.