(From Original Conviction and Sentence of Hon. Odhiambo (S.R.M) in the Chief Magistrate’s Court at Mombasa, in Criminal Case No. E1093 of 2023 on 30 th July, 2024)
Introduction
The Appellants was charged before the Court with the offence of:-
COUNT I: Stealing stock contrary to Section 278 of the Penal Code. Particulars of the same being that on 20 th June, 2023 at Mreroni area in Jomvu Sub-county within Mombasa County, the accused jointly with others not before stole a one cow and its calf valued at Sh. 95,000, the property of Paris Nzaka Ngao.
COUNT II: Failing to prevent felony contrary to Section 392 of the Penal Code. Particulars were that on 24 th April 2023 at Tudor area in Mvita Sub-county within Mombasa County, the accused being a private security guard deployed to guard parking yard, failed to use all reasonable means to prevent commission of a felony namely stealing.
The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called three (3) witnesses and at the close of the Respondent’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced eight (8) years imprisonment on each count.
Being dissatisfied with the said judgment the 1 st and 2 nd appellant lodged the present appeal relying on the following grounds:
THAT the Learned Trial Magistrate erred in law and in fact in failing to appreciate and find that the arrest and subsequent charging of the 1 st Appellant and 2 nd Appellant was an afterthought as he ought to have been arrested immediately at the scene if the 1 st and 2 nd Appellants had committed the said offences.
THAT the learned Trial Magistrate erred in law and in fact by not considering the evidenced of the 1 st and 2 nd Appellant.
THAT the Learned Trial Magistrate erred in law and in fact in making the finding which were a total misdirection and legal deviations from the express provision of the Law.
THAT the Learned Trial Magistrate erred in Law and in fact the judgement is not based on the evidence adduced by the 1 st and 2 nd Appellants.
THAT the Learned Trial Magistrate erred in Law and in fact in failing to consider the 1 st and 2 nd Appellants Submission on record.
THAT the learned trial Magistrate erred in Law and in fact convincing on both counts while the evidence on record does not demonstrate that the Respondent had crossed the threshold of having proved its case beyond any reasonable doubts as required by law.
THAT the Learned Trial Magistrate erred in law and in fact by imposing harsh and excessive sentences against the 1 st and 2 nd Appellants on both counts which are in any event misdemeanors.
For the reasons advanced in their Petition of Appeal dated 9th August, 2024, the 1 st and 2 nd Appellant prayed : - THAT the Appeal be allowed.
THAT the conviction be quashed and the sentences set aside.
THAT the 1 st and 2 nd Appellants be set free.
Evidence
Prosecution Wintess
PW1 PC Meshack Musau attached to Jomvu police station testified that on 24 th July, 2023 he received a report about stock theft from the complainant who is deceased. He stated that the complainant was informed by someone who had seen the accused with the cow and its calf. It was his testimony that the accused then escaped to Rabai. He added that on 14 th August 2023 he received information that the 1 st accused had been arrested in Rabai with two other people on suspicion of stealing a cow. The other people were release after they proved that the cow had not been stolen but the 1 st accused was brought back to Jomvu and that 2 nd accused was later arrested on 30 th August 2023. It was his further testimony that the complainant and his wife were murdered before he could testify and he produced the statement he recorded on 28 th July 2023 (Exhibit No. 1). He added that the witness who saw the accused with the cow and its calf was threatened by the family of the accused and warned not to come to court. It was his testimony that the value of the cow and the calf was Sh. 95,000/- and that they were never recovered. It was also stated that the family of the accused approached the complainant before his death but they were not able to agree on the matter. PW1 produced post mortem report (Exhibit No. 2) for the complainant and statement of the witness (Exhibit No. 3) who was threatened against coming to court.
When cross examined he stated that PW1 stated that he recorded the statement of the accused and he denied stealing the cow and its calf. He admitted that he did not find him with the cow at the time of arrest and that he was seen by a witness who could not attend court due to threats. He stated that the cow that the 1 st accused had in Rabai had not been stolen. PW1 stated that he did not know the accused prior to the arrest and that he did not see the cow and the calf. He added that the accused were arrested two months later as they had escaped to Rabai.
Defence case
The court found out that the at the complaint prosecution had established prima facie came against the accused we put to their defence under Section 211 of the Criminal Procedure Code. He gave sworn testimony and called no witness.
DW 1 the 1 st accused stated that on 14 th May 2023 he was called by his in-law who requested him to take for him a cow to the market for sale as he wanted to raise school fees. He stated that along the way they were stopped by people who wanted to know where they had gotten the cow from. He stated that they were taken to the chief’s office and then to the police station where it was found that the cow had not been stolen. He stated that the complainant then said his cows had also been stolen though he had not reported. It was his testimony that he was taken by police from Jomvu police station and charged for an offence he did not know about.
When cross examined, the 1 st accused stated that he does not engage in sale of livestock and that he had just been called to escort the cow to the market by his in-law.He stated that he saw the complainant when he was arrested and that he was not aware he had been killed due to the reports he made to the police.
DW 2 testified that he was arrested by people he didn't know and charged for an offence he did not know about. It was his defence that he has his own cows that belong to him. He stated that he was not involved in the theft of the cows belonging to the complainant. When cross examination, the 2 nd Accused stated that he works as a fisherman with others who were not his witnesses. He stated that he did not know the complainant and reiterated that the cows at home were his.
DW 3 Mwanaisha Nahodha stated that the 2 nd accused was her husband and that he was not a thief and that the cows at home belong to him. When cross examined he stated that she did not walk around with the 2 nd Accused and could not tell what he did whenever he was away.
DW 4 Jinga Ngawa testified that they were at home around 7pm when over 30 people came home and said they had been sent by the chief. He stated that the people said the 2 nd accused had stolen a cow which was not true as the cows belong to him and they are still at home. When cross examination DW4 admitted that he did not know what the 2 nd accused could have been doing before he was arrested.
Analysis and Determination
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32 . In this case the court stated-;
“The duty of the 1 st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “ an appellant on a 1 st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
I have considered the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions. I find the following broad issues for determination: -
Whether the offence of stock theft was proved beyond reasonable doubt;
Whether the offence of failing to prevent the committing of a felony contrary to Section 392 of the Penal Code beyond reasonable doubt. Whether the offence of stock theft was proved beyond reasonable doubt Elements of offence of defilement
Stealing is defined in the Black’s Law dictionary 8 th Edition as: -
“To take (personal property) illegally with the intent to keep it unlawfully”.
The definition of stealing as found in Section 268 of the Penal Code is:
“A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”
Section 278 of the Penal Code provides that:-
“If the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, whether, goat or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years.”
The offence of stealing is provided for in section 268 as follows:
“A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”
Handling stolen property is provided for under s. 322(1) as read with 322(2): -
“Handling stolen goods (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.”
It is in the back ground of these provisions that the evidence must be analyzed. According to the prosecution the whole story about was that the accused who had stolen the cow and the calf even through the person who saw never testified due to threats to his life. The only other witness was threatened and did not come to court for fear of his life. the witness who did not come to court stated in his statement that he saw the accused persons with the cow and its calf and was later informed that the said cow and calf had been stolen. He then informed the complainant that he had seen the accused with the cow and the calf.
The doctrine of recent possession entitles the court to draw an inference of guilt where the accused is found in possession of recently stolen property in unexplained circumstances. In reaching its finding, the trial court placed reliance on the doctrine of recent possession properly citing the case of “Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga – Versus - Republic, Criminal Appeal No. 82 of 2004” where the court stated as follows: -
“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.
In other words, there must be positive proof:
i). that the property was found with the suspect;
ii). that the property is positively the property of the complainant;
iii). that the property was stolen from the complainant;
iv). that the property was recently stolen from the complainant.
The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.
In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.”
The Canadian Supreme court’s case of “Republic – Versus - Kowkyk (1988)2 SCR 59” , which was cited as an authority by the Court of Appeal in “David Mugo Kimunge – Versus - Republic [2015] eKLR” , accepted the following summary of the doctrine of recent possession: -
“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.”
In this particular case and the prosecution case before the trial Court the prosecution witness PW1 stated that he recorded the statement of the accused and he denied stealing the cow and its calf. He admitted that he did not find him with the cow at the time of arrest and that he was seen by a witness who could not attend court due to threats. He stated that the cow that the 1 st accused had in Rabai had not been stolen. PW1 stated that he did not know the accused prior to the arrest and that he did not see the cow and the calf. He added that the accused were arrested two months later as they had escaped to Rabai.
I agree with the above reasoning but not in its application in this instant appeal and I opine that all the elements necessary to establish recent possession were proved by the prosecution and the defence of the Appellant was plausible. The ingredients of the offence of stock theft had not been sufficiently proved.
The upshot, in my view, is that the offence of stock theft was not proved beyond reasonable doubt.
Whether the offence of failing to prevent the committing of a felony contrary to Section 392 of the Penal Code beyond reasonable doubt.
From the foregoing submissions and evidence, I find that the issue raised in this appeal is whether the Appellants’ conviction for the offences of neglect to prevent a felony was based on sufficient and satisfactory evidence. Section 392 of the Penal Code sets out the offence of failing to prevent the commission of a felony in the following terms.
“392. Neglect to prevent felony
Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof is guilty of a misdemeanour.”
As stated above, the prosecution brought evidence of a stock theft of a cow and its calf. In this regard, it appears that the evidence relied upon by the prosecution of theft and neglect to prevent commission of a felony was purely circumstantial. The law concerning circumstantial evidence was laid down in “Ndurya – Versus - R [2008] KLR 135” by the Court of Appeal where it was held that before convicting someone on the basis of circumstantial evidence, the court has to be sure that there are no other co-existing circumstances which would weaken or destroy the inference of guilt. Similar holdings were reached in “Sawe – Versus - Republic [2003] KLR 364” and “R – Versus - Kipkering arap Koske and Another 16 EACA 135” .
I am not satisfied that there is sufficient evidence on record for an inference of guilt on the part of the appellants, bearing in mind the requirements as to proof by circumstantial evidence enunciated in the foregoing authorities. It is possible that the evidence of PW 1 is doubtful and this being a criminal matter, the standard of proof has to be met in order to sustain a conviction. In the circumstances the alternative count was not proved beyond reasonable doubt and that the conviction was unsafe. However suspicion however strong should not found a conviction in the absence of corroborating evidence. There was clearly some doubt created regarding the appellants’ involvement in the crime and hence the benefit of such doubt should have been resolved in their favour.
Conclusion and Disposition
In the result I find the appellants appeal has merit. The same is allowed. The conviction is hereby quashed and the sentence is set aside. The Appellants are set at liberty forthwith unless otherwise lawfully held.
IT IS SO ORDERED ACORDINGLY.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …27TH….…………DAY OF …………JUNE…………….……., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA…………State Counsel;
………………………………………….…Appellants.
Introduction
The Appellants was charged before the Court with the offence of:-
COUNT I: Stealing stock contrary to Section 278 of the Penal Code. Particulars of the same being that on 20 th June, 2023 at Mreroni area in Jomvu Sub-county within Mombasa County, the accused jointly with others not before stole a one cow and its calf valued at Sh. 95,000, the property of Paris Nzaka Ngao.
COUNT II: Failing to prevent felony contrary to Section 392 of the Penal Code. Particulars were that on 24 th April 2023 at Tudor area in Mvita Sub-county within Mombasa County, the accused being a private security guard deployed to guard parking yard, failed to use all reasonable means to prevent commission of a felony namely stealing.
The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called three (3) witnesses and at the close of the Respondent’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced eight (8) years imprisonment on each count.
Being dissatisfied with the said judgment the 1 st and 2 nd appellant lodged the present appeal relying on the following grounds:
THAT the Learned Trial Magistrate erred in law and in fact in failing to appreciate and find that the arrest and subsequent charging of the 1 st Appellant and 2 nd Appellant was an afterthought as he ought to have been arrested immediately at the scene if the 1 st and 2 nd Appellants had committed the said offences.
THAT the learned Trial Magistrate erred in law and in fact by not considering the evidenced of the 1 st and 2 nd Appellant.
THAT the Learned Trial Magistrate erred in law and in fact in making the finding which were a total misdirection and legal deviations from the express provision of the Law.
THAT the Learned Trial Magistrate erred in Law and in fact the judgement is not based on the evidence adduced by the 1 st and 2 nd Appellants.
THAT the Learned Trial Magistrate erred in Law and in fact in failing to consider the 1 st and 2 nd Appellants Submission on record.
THAT the learned trial Magistrate erred in Law and in fact convincing on both counts while the evidence on record does not demonstrate that the Respondent had crossed the threshold of having proved its case beyond any reasonable doubts as required by law.
THAT the Learned Trial Magistrate erred in law and in fact by imposing harsh and excessive sentences against the 1 st and 2 nd Appellants on both counts which are in any event misdemeanors.
For the reasons advanced in their Petition of Appeal dated 9th August, 2024, the 1 st and 2 nd Appellant prayed : - THAT the Appeal be allowed.
THAT the conviction be quashed and the sentences set aside.
THAT the 1 st and 2 nd Appellants be set free.
Evidence
Prosecution Wintess
PW1 PC Meshack Musau attached to Jomvu police station testified that on 24 th July, 2023 he received a report about stock theft from the complainant who is deceased. He stated that the complainant was informed by someone who had seen the accused with the cow and its calf. It was his testimony that the accused then escaped to Rabai. He added that on 14 th August 2023 he received information that the 1 st accused had been arrested in Rabai with two other people on suspicion of stealing a cow. The other people were release after they proved that the cow had not been stolen but the 1 st accused was brought back to Jomvu and that 2 nd accused was later arrested on 30 th August 2023. It was his further testimony that the complainant and his wife were murdered before he could testify and he produced the statement he recorded on 28 th July 2023 (Exhibit No. 1). He added that the witness who saw the accused with the cow and its calf was threatened by the family of the accused and warned not to come to court. It was his testimony that the value of the cow and the calf was Sh. 95,000/- and that they were never recovered. It was also stated that the family of the accused approached the complainant before his death but they were not able to agree on the matter. PW1 produced post mortem report (Exhibit No. 2) for the complainant and statement of the witness (Exhibit No. 3) who was threatened against coming to court.
When cross examined he stated that PW1 stated that he recorded the statement of the accused and he denied stealing the cow and its calf. He admitted that he did not find him with the cow at the time of arrest and that he was seen by a witness who could not attend court due to threats. He stated that the cow that the 1 st accused had in Rabai had not been stolen. PW1 stated that he did not know the accused prior to the arrest and that he did not see the cow and the calf. He added that the accused were arrested two months later as they had escaped to Rabai.
Defence case
The court found out that the at the complaint prosecution had established prima facie came against the accused we put to their defence under Section 211 of the Criminal Procedure Code. He gave sworn testimony and called no witness.
DW 1 the 1 st accused stated that on 14 th May 2023 he was called by his in-law who requested him to take for him a cow to the market for sale as he wanted to raise school fees. He stated that along the way they were stopped by people who wanted to know where they had gotten the cow from. He stated that they were taken to the chief’s office and then to the police station where it was found that the cow had not been stolen. He stated that the complainant then said his cows had also been stolen though he had not reported. It was his testimony that he was taken by police from Jomvu police station and charged for an offence he did not know about.
When cross examined, the 1 st accused stated that he does not engage in sale of livestock and that he had just been called to escort the cow to the market by his in-law.He stated that he saw the complainant when he was arrested and that he was not aware he had been killed due to the reports he made to the police.
DW 2 testified that he was arrested by people he didn't know and charged for an offence he did not know about. It was his defence that he has his own cows that belong to him. He stated that he was not involved in the theft of the cows belonging to the complainant. When cross examination, the 2 nd Accused stated that he works as a fisherman with others who were not his witnesses. He stated that he did not know the complainant and reiterated that the cows at home were his.
DW 3 Mwanaisha Nahodha stated that the 2 nd accused was her husband and that he was not a thief and that the cows at home belong to him. When cross examined he stated that she did not walk around with the 2 nd Accused and could not tell what he did whenever he was away.
DW 4 Jinga Ngawa testified that they were at home around 7pm when over 30 people came home and said they had been sent by the chief. He stated that the people said the 2 nd accused had stolen a cow which was not true as the cows belong to him and they are still at home. When cross examination DW4 admitted that he did not know what the 2 nd accused could have been doing before he was arrested.
Analysis and Determination
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32 . In this case the court stated-;
“The duty of the 1 st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “ an appellant on a 1 st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
I have considered the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions. I find the following broad issues for determination: -
Whether the offence of stock theft was proved beyond reasonable doubt;
Whether the offence of failing to prevent the committing of a felony contrary to Section 392 of the Penal Code beyond reasonable doubt. Whether the offence of stock theft was proved beyond reasonable doubt Elements of offence of defilement
Stealing is defined in the Black’s Law dictionary 8 th Edition as: -
“To take (personal property) illegally with the intent to keep it unlawfully”.
The definition of stealing as found in Section 268 of the Penal Code is:
“A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”
Section 278 of the Penal Code provides that:-
“If the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, whether, goat or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years.”
The offence of stealing is provided for in section 268 as follows:
“A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”
Handling stolen property is provided for under s. 322(1) as read with 322(2): -
“Handling stolen goods (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.”
It is in the back ground of these provisions that the evidence must be analyzed. According to the prosecution the whole story about was that the accused who had stolen the cow and the calf even through the person who saw never testified due to threats to his life. The only other witness was threatened and did not come to court for fear of his life. the witness who did not come to court stated in his statement that he saw the accused persons with the cow and its calf and was later informed that the said cow and calf had been stolen. He then informed the complainant that he had seen the accused with the cow and the calf.
The doctrine of recent possession entitles the court to draw an inference of guilt where the accused is found in possession of recently stolen property in unexplained circumstances. In reaching its finding, the trial court placed reliance on the doctrine of recent possession properly citing the case of “Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga – Versus - Republic, Criminal Appeal No. 82 of 2004” where the court stated as follows: -
“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.
In other words, there must be positive proof:
i). that the property was found with the suspect;
ii). that the property is positively the property of the complainant;
iii). that the property was stolen from the complainant;
iv). that the property was recently stolen from the complainant.
The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.
In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.”
The Canadian Supreme court’s case of “Republic – Versus - Kowkyk (1988)2 SCR 59” , which was cited as an authority by the Court of Appeal in “David Mugo Kimunge – Versus - Republic [2015] eKLR” , accepted the following summary of the doctrine of recent possession: -
“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.”
In this particular case and the prosecution case before the trial Court the prosecution witness PW1 stated that he recorded the statement of the accused and he denied stealing the cow and its calf. He admitted that he did not find him with the cow at the time of arrest and that he was seen by a witness who could not attend court due to threats. He stated that the cow that the 1 st accused had in Rabai had not been stolen. PW1 stated that he did not know the accused prior to the arrest and that he did not see the cow and the calf. He added that the accused were arrested two months later as they had escaped to Rabai.
I agree with the above reasoning but not in its application in this instant appeal and I opine that all the elements necessary to establish recent possession were proved by the prosecution and the defence of the Appellant was plausible. The ingredients of the offence of stock theft had not been sufficiently proved.
The upshot, in my view, is that the offence of stock theft was not proved beyond reasonable doubt.
Whether the offence of failing to prevent the committing of a felony contrary to Section 392 of the Penal Code beyond reasonable doubt.
From the foregoing submissions and evidence, I find that the issue raised in this appeal is whether the Appellants’ conviction for the offences of neglect to prevent a felony was based on sufficient and satisfactory evidence. Section 392 of the Penal Code sets out the offence of failing to prevent the commission of a felony in the following terms.
“392. Neglect to prevent felony
Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof is guilty of a misdemeanour.”
As stated above, the prosecution brought evidence of a stock theft of a cow and its calf. In this regard, it appears that the evidence relied upon by the prosecution of theft and neglect to prevent commission of a felony was purely circumstantial. The law concerning circumstantial evidence was laid down in “Ndurya – Versus - R [2008] KLR 135” by the Court of Appeal where it was held that before convicting someone on the basis of circumstantial evidence, the court has to be sure that there are no other co-existing circumstances which would weaken or destroy the inference of guilt. Similar holdings were reached in “Sawe – Versus - Republic [2003] KLR 364” and “R – Versus - Kipkering arap Koske and Another 16 EACA 135” .
I am not satisfied that there is sufficient evidence on record for an inference of guilt on the part of the appellants, bearing in mind the requirements as to proof by circumstantial evidence enunciated in the foregoing authorities. It is possible that the evidence of PW 1 is doubtful and this being a criminal matter, the standard of proof has to be met in order to sustain a conviction. In the circumstances the alternative count was not proved beyond reasonable doubt and that the conviction was unsafe. However suspicion however strong should not found a conviction in the absence of corroborating evidence. There was clearly some doubt created regarding the appellants’ involvement in the crime and hence the benefit of such doubt should have been resolved in their favour.
Conclusion and Disposition
In the result I find the appellants appeal has merit. The same is allowed. The conviction is hereby quashed and the sentence is set aside. The Appellants are set at liberty forthwith unless otherwise lawfully held.
IT IS SO ORDERED ACORDINGLY.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …27TH….…………DAY OF …………JUNE…………….……., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA…………State Counsel;
………………………………………….…Appellants.