Onesmus Mutuku v Republic

4. b. That that the learned trial magistrate erred in matters of law and facts by convicting the appellant while relying on prosecution's evidence which was doubtful and wanting. c. That that the learned trial magistrate erred in both law and facts by convicting the appellant where the investigation was inept. d. That the trial magistrate erred in both law and facts by failing to consider the appellant firm defence. e. That the trial magistrate erred in law and facts by default application of section 333(2) of the Criminal Procedure Code thus disregarding the entire period that the appellant spent in remand. f. That the trial magistrate erred in matters of law and fact by not evaluating the evidence of the prosecution and realises that the appellant was arbitrary arrested without a cogent reason and falsely incriminated with an offence he did not commit. This being a first appeal, this court is duty bound to independently re-analyse, re-evaluate, and re-asses the evidence presented before the trial court and arrive at an independent conclusion and or finding with the obvious caution that it did not have the advantage of seeing or listening to the witnesses to be able to assess their general demeanour. See the case of Okeno vs Republic (1972) E.A.32 and Kiilu & another vs Republic (2005) KLR174 where the court of appeal stated that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. Brief Facts 5. Brief facts before the trial court were that, the Appellant on the night of 28th and 29th September 2020 at Slota Area in Athi River sub- County within Machakos County jointly with others not before court broke and entered into a shop belonging to one Catherine Nduku Wambua and did steal from therein assorted weaves and body lotions all valued at Kshs.150,000/= the property of Catherine Nduku Wambua. 6. The alternative charge to Count I, the three accused persons are charged with handling stolen goods contrary to section 322 (1) as read with section 322 (2) of the Penal Code. 7. Particulars are that on the night of 20th October 2020 at Athi River Township in Athi River SubCounty within Machakos County, otherwise than in the court of stealing, jointly handled three pieces of darling cool layers, one piece of darling elite, 3 pieces of fluffy extra kinky, one piece of Angel Victoria, I piece of Super Diva and 2 pieces Angel Mambo twist all valued at Kshs.64,000/= the property of Catherine Nduku Wambua knowingly it having reasons to believe them to be stolen or unlawfully obtained. 8. They faced the second Count of Shop Breaking contrary to section 306 (b) and stealing contrary to section 279(g) of the Penal Code. 9. Particulars are that on the night of 17th and 18th October 2020 at Sokoni area in Athi River SubCounty within Machakos County, jointly with others not before court broke and entered into a shop belonging to one Dorcas Mwende and did steal from that assorted clothes, iron box and vitenge materials all valued at Kshs.275,000/= the property of Dorcas Mwende. 10. Alternative charge for Count 2 they faced the offence of handling stolen goods contra to section 322 (1) as read with section 322 (2) of the Penal Code. The particulars are that on the night of 20th October https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 2

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2020 at Athi River Township in Athi River sub county within Machakos County otherwise than in the course of stealing, jointly handled 8pieces of vitenge materials the property of Dorcas Mwende knowingly of having reason to believe them to be stolen or unlawfully obtained. 11. In Count 3, they are charged with shop breaking contrary to section 306 (b) and stealing contrary to section 279 (g) of the penal code. 12. Particulars are that on the night of 28th and 29th September 2020 at Site Area in Athi River sub county with others not before court broke and entered into a shop belonging to one Cecillia Philip and did steal from therein assorted cosmetics, assorted weaves and assorted clothe all valued at Kshs.191,218 the property of CECILIA PHILIP Alternative charge to count 3 the accused persons are charged with handling stolen goods contrary to section 322 (1) as read with section 322 (2) of the Penal Code. 13. Particulars are that on the night of 20th day of October 2020 at Athi River Township in Athi River Sub-County within Machakos County, otherwise than in the course of stealing, jointly handled 2 pieces of Elite weave, 2 pieces of Bobbie braids, one piece of Supa diva weave, one piece of Galaxy weave, two pieces of Bona twist and one piece of Everest weave the property of Cecilia Philip knowingly or having reasons to believe them to be stolen or unlawfully obtained. 14. In Count 4, they are charged with shop breaking contrary to section 306 (b) and stealing contrary to section 279 (g) of the Penal Code. 15. Particulars are that on the night of 13th and 14th September 2020 at Athi River Township in Athi River Sub-County within Machakos County jointly with others not before court broke and entered into a shop belonging to one Moses Wondero Keya and did steal from their assorted clothes and 9 pieces of blankets all valued at Kshs.99,800/=the property of Moses Wondero Keya. 16. The alternative to Count 4, they were charged with handling stolen goods contrary to section 322 (1) as read with section 322 (2) of the Penal Code. 17. Particulars are that on the night of 20th October 2020 at Athi River Township, in Athi River SubCounty within Machakos County, otherwise than in the course of stealing jointly handled one blanket, 9 girls' dresses, one jacket, one baby blanket the property of Moses Wondero Kenya knowing or having reasons to believe them to be stolen or unlawfully obtained. Prosecution’s Case 18. The prosecution called Seven-(7) witnesses in support its case. 19. PW1 was Moses Odero Keya. He testified that on 14/10/2020 his shop was found broken into and items lost. On 20/10/2020 the police called him as some items were recovered, the inventory of the items as well as the receipts were produced in evidence. 20. PW2 was Cecillia Keli Philip. Her testimony was that on 28/9/2020 she was at home having closed her shop at 7 p.m. That the following day at 6 a.m., the landlord called and informed her that her shop had been broken into. That the CCTV showed that people came at 7 a.m. and broke into the shop. She reported to the police station and recorded a statement. That on 21/10/2020 she was called at the police station as some of the items had been recovered. She was not able to identify the people at the dock in the court. 21. PW3 was number 91599 Corporal Emily Akinyi. She was based at the Athi River Police Station. That on 29th September 2020 she was in the office.PW2 reported a case of breaking. She then visited the scene and found the door broken, padlock missing and shelves empty. They watched the CCTV which showed that the theft occurred at around 7a.m. Some officers on patrol recovered the items. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 3

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22. PW4 was Dorcas Mwende. Her testimony was that on 16/10/2020, she went to the shop and found the same broken into. A report was made to the police station. On 21/10/2020 the police called her and some items were recovered. 23. PW5 was Phylis Wangari Macharia. She indicated that she was the owner of motor vehicle Registration Number KCS 398 M Suzuki Auto. She had employed the first accused person who operated a taxi. He was told by the police that the vehicle had been involved in theft. 24. PW6 was Number 62698 Sgt. Timothy Jibu. He indicated that he was from Athi River Police Station Crime Section and the Investigating Officer. One Cecilia and Catherine made complaints of breaking. A team on patrol sighted motor vehicle number KCM 398 Suzuki; it was loaded with beauty items and clothes. That the first accused person was the driver the second and third accused persons took off. All the three persons were arrested on different dates. The recovered items as well as the receipts were produced in evidence. 25. PW7 was No. 75967 Corporal Peterson Kithusi. He was from Athi River Police Station and designated as police driver. He was on duty pm 19/10/2020 patrolling Athi River area. They approached a stationary vehicle which was white in colour. There were three occupants. 26. The first accused person (Appellant) drove the vehicle to the police station as the second and third did not return. The first accused did also escape. Defence/Appellant’s Case 27. On his defence vide sworn testimony, the Appellant denied the offence. He stated that he was taxi driver employed by Peris Wangari. That on 28th and 29th September he was in Nyahururu where he had taken the employer. On 20/10/2020 the evening he took the vehicle to Nyayo Estate. That the employer said she will give him a client. That someone came and put luggage in the car. Then police officers. He was arrested. He insisted that he did not know who the customer was. 28. When the matter came for directions on hearing, parties agreed to dispose of the appeal by way of written submissions. Appellant’s submissions 29. The Appellant in person filed his written submissions dated 16/10/2024 submitting thatthe evidential proof as adduced is too remote and wanting hence deserving your considerations. It is his belief that this court is competently seized of this matter and that in its indefatigable quest for fair administration of justice, the appellant will finally get a sigh of relief. 30. This being a first appeal and which essentially deals with matters of laws and facts, the court must establish whether the lower court was correct in its findings to make the conviction of the appellant safe. He posed a question; Did the lower court observe the minimum legal requirement of criminal trials? It's his humble submission that from the courts records there are very high chances that innocent people could be suffering in prison for an offence they did not commit. 31. He submitted that lack of proper evaluation of evidence by the lower court is apparent and wide. This is a point of law because it has led to the conviction of an innocent person. He submits that the instant matter was purely based on suspicion and frame ups. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 4

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32. It is his humble submission that suspicion however strong the same might be and must be held to be just that; suspicion, reliance was places on the holding in Parvin Dhalay VS Rep.CR.APP. CA. No 10 of 1997 where the court held that; “ Suspicion upon suspicion remains just that-suspicion and that cannot and should never form the basis of a conviction as happened in the present case". 33. He also relied on the case of Bukenya & Others Vs Uganda(1972) EA 549 Chebichi Sawe Vs Republic Criminal Appeal No 2 of 2002 the court stated that: “ Suspicion however strong cannot provide a basis of inferring guilty which must be provided by evidence." 34. That the thread of the interpretation and analysis leaves in the eyes of the law a feeling that justice was not served in the sense that the threshold of proving a criminal case beyond reasonable doubt was not properly discharged. There existed so many doubts than convincing points of laws to affirm conviction. 35. The appellant submitted that he did not dispute that he was the driver of the motor vehicle that was alleged to have been in possession of the alleged stolen goods and that alone was not enough evidence to have secured conviction. The facts raised by the prosecution were not enough to draw an inference of guilt to the appellant even through circumstantial evidence. He made reference to Blackstone's Criminal Practice 1995 Edition F 1,10 at page 1777 it is that: “ Circumstantial evidence is evidence of facts from which the existence or non-existence of facts in issue may be inferred. It works by cumulative in geometrical progression eliminating all other possibilities. It is however necessary before drawing the inference of the accused guilt front circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. " (underlined for emphasis) 36. On the above definition, the appellant proceeded to outline the co-existing circumstances that demonstrated lack of mens rea for the offence charged and as a point of law, there is no criminal culpability if the actus reus does not coincide with the mens rea to constitute a crime. 37. First, it is was the appellant’s submission that from the time of the alleged thefts to the time of being in possession of the alleged stolen goods in the car which the appellant was found in by the virtue of being a taxi-driver of the subject car, many days had elapsed and thus it is a reasonable fact that such possession cannot be termed as recent possession and which negates the term "knowingly" connoted in the charge to point out mens rea for the offence which the appellant was convicted for. It is a fact that, the appellant was in the course of his daily work and which his employer told the court that he was the driver of the said vehicle for 3 years with no criminal report. 38. He submitted that time lapse from the date of theft to the time these goods were found is a relevant fact to consider and which the lower court did not. The exchange of hands from one person to another in regards to the said goods from the time of theft to the time of recovery is a relevant factor which the lower court did not consider taking into account that many days had lapsed and thus arriving to a wrong decision. 39. He asserted that in car hiring industry, it is not a requirement to ask the person hiring the service to inform the driver where he has gotten the goods which he seeks the service of delivery. It is also a fact that the appellant had no information in regards the alleged thefts which could have made the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 5

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appellant suspect that the goods in the subject matter may be have been acquired through theft. That information was not in public domain. 40. That, it is also a fact that there was no evidence tendered by the prosecution to incriminate the alleged motor vehicle to have been seen at the scenes of the alleged thefts before, after or even at the time of the alleged theft. No evidence was procured from witnesses by the prosecution to prove that the appellant was found within the vicinity of the scene of crime. 41. It is the Appellant’s submission that there is no proof beyond reasonable doubt that the he fled after his arrest because the evidence of the prosecution witnesses contradicts itself in the manner it was tendered. 42. Further the appellant submitted that the evidence of the alleged escape was tendered by PW6 and who was the Investigating Officer in this matter and who depended on the hearsay evidence of one policeman by the name Mwendo who was alleged to have witnessed the appellant fleeing. It is very unfortunate to the prosecution case because this police officer was not summoned where PW6 stated that "PC Mwendo is not a witness. " 43. It was further submitted that; it is trite law that there is no given number of witnesses required for the prosecution to prove its case. It is also a fact that if the prosecution fails to avail vital witnesses to prove an allegation to the required standard is at its detrimental. Reliance was placed on the reasoning in the case of Daitany Vs Rep (1953) EACA 493 that:“ the prosecution has in general discretion to call someone as a witness. If it does not call a vital and reliable one runs a risk of the court presuming that his evidence could be, and not produced, would if produced have been unfavourable to the prosecution. 44. That the other piece of contradicting evidence in relation to the fleeing of the appellant was procured from PW7 and who further stated that in the process of the appellant's flee, a canteen was damaged and if there were such damage, then why was the appellant not charged with the offence of malicious damage or for escaping after being arrested? The appellant believes this creates doubts about fleeing and which was used to portray a bad image towards the appellant. 45. In this regard, the appellant called for aid of a just reasoning of the court in the case of Abel Morari & Another vs REP CR APP. No.86 of 1994/ CA that;’ “ if a witness is unreliable none of his evidence can be relied upon. Such evidence is indeed evidence in a case although generally of little valle. Obvious no court can find a conviction solely on the evidence of such witness because his reliability must itself introduce an element of reasonable doubt. " 46. The appellant submitted that the thread that runs throughout his entire submissions is that the prosecution evidence was not safe to secure a conviction and the court ought to have ruled out all these grave contradictions and doubts in favour of the appellant as it was held in Elizabeth Waithiegeni Gatimu Vs Rep (2015) eKLR that: “ To give accused person the benefit of doubt in a criminal case it is not necessary that there should be many circumstances creating doubt(s). A single circumstance in a prudent mind about guilt of an accused is sufficient. The accused is entitled benefit of doubt not a matter of grace and concession but a matter of right. An accused person is the most favourable child of the law and every benefit goes to him regardless off acts whether he hastens such a plea. " https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 6

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47. On non-compliance with Section 333 (2) of the Criminal Procedure Code, the Appellant submitted that it is trite law that the period which the accused person has been held in custody prior to being sentenced must be taken into account in computing the period of the sentence. He relied on the interpretation in the decision of the Court of Appeal in Al-Iamad Abolfathi Mohammed & Another Vs Rep (2018) EKLR where it was held in relevant part that: “ The second is the failure by the court to take into account in a meaningful way the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent in custody by the appellants. Taking into account "the period spent in custody" must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still Order the sentence to run from the date of conviction because that amounts to ignoring altogether the period already spent in custody”. 48. He also cited the case of Vincent Jona Sila & 87 others vs Rep Petition No. 15 (2020) at Machakos High Court, where Justice Odunga held that; (paragraph 38-39) “ What then are the options available to a person who is convicted and the sentence imposed does not take into account the period spent in custody? In my view, a person on whom a sentence has been imposed which does not comply with section 333(2) of the Criminal Procedure Code has recourse to this court since he would by fact been subjected to serve a sentence which does not comply with law. Imposing a sentence without adhering to law hence subjecting the convict to serve a sentence that is over and above that period for, is in my view depriving him his freedom without a just course. " 49. The Appellant also made reference to the Judiciary Sentencing Policy Guidelines (policy direction. 7.10) in relevant states: “ The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during trial. Failure to do so impacts on the overall period of detention which may result in excessive punishment that is not proportional to offence committed. " 50. 1t was therefore the appellant’s submission that failure by the trial court to take into account this provision of law was unlawful and this honourable court ought to interfere. Respondent’s Submissions 51. The ODPP through its prosecution Counsel filed its written submissions dated 31/01/2025 submitting on six grounds of appeal. On whether the prosecution proved its case beyond reasonable doubt, counsel submitted that the trial court properly considered the evidence as adduced by the prosecution in arriving at the decision to convict and thereafter sentence the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 7

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52. The Respondent submitted that the elements of the offence were proved beyond reasonable doubt. That this being a first appeal, this Honourable Court has a duty to re-evaluate the evidence which was before the trial court and come to its own conclusion. 53. The Respondent cited Section 322(1) & (2) of the Penal Code provides that: 54. “ l. a person who handles stolen goods 90therwise that in the course of stealing) knowing or having reason to believe them to be stolen goods he dishonestly undertakes or assists in their retention, remorse. disposal or realisation by or for the benefit of another person the appears to do so. 2. a person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding 14 years" The Respondent submitted that PW1 testified that she closed her shop well 16/10/2020 and on 17/10/2020 she found the door had space and found clothes were missing. Missing was a gown, vitenge, dresses and shirts vitenge. She reported to the police. She was later called to identify recovered items and half of the vitenges were recovered. PW2 testified that that she was informed that her shop had been broken into. She found items were stolen. She also later returned to the police station to identify recovered items which she did. PW3 testified she visited the scene and found the shop broken into and shelves empty indicating items were stolen. She testified officers on patrol found suspects who had stolen items and the suspects managed to escape and ran away. PW4 also indicated she found the padlocks of her door broken into and padlock cut. She found empty shelves and items stolen. She too was called to identify recovered items and she recovered some items. stolen from her shop. None of the witnesses knew the Appellant neither did they see the Appellant steal their property. Section 322(4) of the Penal Code states that: (4) Where a person is charged with an offence under this section— (a) 55. it shall not be necessary to allege or prove that the person charged knew or ought to have known of the particular offence by reason of which any goods are deemed to he stolen goods: It would not be necessary to prove that the Appellant actually stole the goods. Reliance was placed on the holding in Tembere v Republic [1990] KEHC 43 (KLR) where Githinji J stated that: “ one of the important elements of the charge of handling stolen property is that the accused must know or have reason to believe that the goods were stolen. Another vital element is that the accused must dishonestly receive or retain the goods” 56. The same was reiterated in Kariuki v Republic [2022/ KEHC 16800 (KLR) where C. W. Githua J stated: “ ..it is clear that for the prosecution to sustain a conviction for the offence of handling stolen goods, it must prove beyond reasonable doubt that the accused person dishonestly received or retained goods knowing or having reason to believe that they were stolen property” 57. The Respondent submitted that PW5 testified that she was the owner of motor vehicle KCS 398 M and she had employed the Appellant to operate it as a taxi. She was able to avail the employment agreement between her and the Appellant. In cross examination she stated the vehicle had been abandoned and that the police informed her that it had been carrying stolen clothes. One of the police officers named https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 8

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PW3 testified that Appellant was driving a motor vehicle which was a taxi. He drove to the police station and jumped out of the vehicle and left behind properties in the vehicle and he ran away. He was arrested several days later. on 27/9/2022 PW I testified that he too found his shop broken into and items stolen. He was later called to the police station to identify items recovered and he found some items were recovered. 58. That PW6 was the investigating officer in the matter. They received several complaints from shop owners that their shops were broken into and items stolen. Police on patrol came across motor vehicle KCS 398 M (clarified in cross examination) and found vehicle loaded with beauty items and clothes. the driver of the motor vehicle was the Appellant. The Appellant was arrested and they took him to the police station. At the gate of the station the appellant jumped off and escaped. PW6 indicated that the Appellant claimed to be business people and was going to sell the items. PW7 stated that he was on patrol in Athi River at around 4:00a.m when he approached a stationary vehicle KCS 398 M. He together with other officers found three occupants in the motor vehicle, the Appellant being one of them. 59. That PW7 stated that the Appellant was the driver of the said motor vehicle. They requested that Appellant to drive the vehicle to the police station. One of the officers entered the vehicle and drove behind the motor vehicle. On the way Appellant escaped and in cross examination he confirmed that he saw the Appellant ran away. 60. Further, the Respondent submitted that in his defence the Appellant confirmed that he was a taxi driver employed by PW5. He testified that the items were placed in the car by a customer that his employer had indicated to him will come on the said date. He further denied running away. In ground No. 4 he states that his defence was not considered by the trial magistrate. On page 69 - 73 of the record (the judgement) the trial magistrate considered the Appellant's defence and rejected it as the Appellant explanation was not satisfactory. 61. The Respondent submits that the appellant’s defence was an afterthought and the trial court was correct in rejecting it. His defence could not shake the prosecution evidence. 62. The Respondent submits further that the evidence shows that the Appellant was in possession of the stolen items in his car. His conduct shows the behaviour of a guilty mind. He ran away when he was arrested and taken to the police station. He did not present himself but was re-arrested several days later. The Appellant was in possession of the motor vehicle that had the stolen items, he also could not explain his whereabouts on the dates of the theft. 63. The Respondent submitted that the charge against the Appellant was proved beyond reasonable doubt. 64. On sentence, the Respondent cited Section 322(2) of the Penal Code which provides: “ 2. 65. a person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding 14 years" That the Appellant was sentenced to 8 years for each count and the sentences were to run concurrently. The sentencing guidelines 2023 have set out the objectives of sentencing as follows: i. Retribution: To punish the offender for their criminal conduct in a just manner. ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 9

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iii. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. iv. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender's contribution towards meeting those needs. v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender's criminal acts. vi. Denunciation. To clearly communicate the community's condemnation of the criminal conduct. vii. Reconciliation: To mend the relationship between the offender, the victim and the community. viii. Reintegration: To facilitate the re-entry of the offender into the society. 66. The Respondent submitted that the sentence was within the law, sufficient and appropriate Looking at the circumstances of the case. 67. The Respondent observed that, in his submissions the Appellant has indicated that the prosecution did not prove the actus reas and mens rea of the offence and submitted that from the Sections highlighted above the offence under section 322(1) of the Penal Code was proved by the prosecution evidence. 68. That the Appellant further stated in his submission that the prosecution failed to call vital witnesses. The duty to call the prosecution witnesses is solely on the prosecution. Under Section 143 of the Criminal Procedure Code, the prosecution has the power to determine the number of witnesses it may require to prove its case. The Respondent submitted that the witnesses called by the prosecution in this matter at the trial court were sufficient and their evidence proved the case as against the Appellant. He further submitted that the evidence of PW7 was unreliable. PW7 testified that he found the Appellant in the car with the stolen items he further stated that the Appellant ran away upon reaching the gate of the police station. The same is as mentioned by another police officer named PW3. The evidence of PW7 was consistent with the evidence of other witnesses and the circumstances surrounding the case. 69. The Respondent urged this honourable court to reject this argument by the Appellant. 70. That the Appellant argued in his submission that Section 333(2) of the Criminal Procedure Code was not considered and submit that from the trial court judgment on the last paragraph it states that ...as regards [the third accused person. the period spent in custody will be computed in the sentence... " The Appellant in the case was the Ist Accused person. The Respondent urged this Court to peruse the record and rectify the error if indeed the Appellant spent time in custody. 71. Taking into consideration all the above-highlighted areas, the Respondent invited the court to reject the Appellant appeal and submissions, save tor the ground of Section 333(2) of the CPC being considered and uphold the conviction and sentence imposed by the trial court. 72. The Respondent concluded that this appeal lacks merit and should therefore be dismissed in its entirety save for the ground of consideration of section 333(2) of the Criminal Procedure Code. Analysis and Determination 73. Having considered the record of appeal and submissions by both parties, issues that emerge are; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 10

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a) Whether the prosecution proved its case beyond reasonable doubt d) Whether the trial Magistrate erred in application of section 333(2) of the Criminal Procedure Code thus disregarding the entire period that the appellant spent in remand. a. Whether the prosecution proved its case beyond reasonable 74. It is trite that the duty to prove a case beyond reasonable doubt purely lies on the prosecution at all times and that it does not shift. See Okethi Okale v Republic (1965) EA 555. However, it is worth noting that proof beyond reasonable doubt does not connote 100% error free case. Offences are committed, investigated, prosecuted and decided by human beings who are prone by human nature to make mistakes here and there for one reason or the other or due to lapse of memory by witnesses when testifying owing to a long period of delay before testifying. 75. Therefore, in some cases, a minimal margin of error or mistake in evidence or charges which does not affect substantially the overall evidence or interest of justice cannot be construed to mean that a case has not been proved beyond reasonable doubt. See Miller vs Minister of Pensions (1947)2All EA 372 where the court held that; “ The degree is well settled. It need not reach degree of certainty, but it must carry a high degree of probability. Proof beyond reasonable does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice” 76. The appellant was jointly charged with Christiano Sila Nzioki (2nd Accused) and Vincent Mutisya (3rd Accused) for the offence of stealing as a main count. 77. Along the way during trial, the 2nd Accused absconded and had not been arrested at the time of writing and delivery of the judgment by the trial court. 78. The Appellant and his co-accused (2nd Accused) were acquitted in all the main counts and the alternative charge to Count 1 under section 215 of the Criminal Procedure Code. 79. The Appellant and the 3rd Accused were convicted for the alternative counts 2, 3 and 4 being the offences of handling stolen goods under Section 215 of the Criminal Procedure Code and were sentenced to serve 8 years imprisonment on each of the three counts. The sentences were to run concurrently. 80. In the present appeal, the prosecution adduced no other evidence other than the evidence of the Appellant having been the driver of motor vehicle registration number KCS 398M in which the alleged stolen items were found. The prosecutions case was that the incidences happened on the nights of 28th and 29th September 2020, 13th and 14th October 2020 and16th and 17th October 2020. The police conducted a patrol on 19th and 20th October 2020 and while walking along Kisumu Ndogo area, they met the subject motor vehicle parked on the road. They checked inside the vehicle and saw it was loaded with beauty items and clothes. The driver therein was the Appellant. He was with the 2nd and 3rd Accused persons who managed to escape. The Appellant was arrested and taken to Athi River Police Station. The Appellant was in the car with the stolen items. The Appellant avoided the 1st gate of the police station and used the 2nd gate. The vehicle he was driving moved and knocked the police canteen. The Appellant ran away but was re-arrested on 21/10/2020 as per the Charge Sheet and charged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 11

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81. Before a court can convict on the application of the doctrine of recent possession, certain facts must be established to the required standard of proof beyond any reasonable doubt. See Malingi v Republic (1989) KLR 225 where Bosire J held thus: “ By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no coexisting circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver." "By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no coexisting circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver." 82. The prosecution is required to establish, firstly, that the property was stolen from the complainant, secondly, that the property was found in the Appellants exclusive possession, thirdly, that the property was positively identified as the property of the complainant and finally, that the recovery of the stolen item was within the proximate time of the robbery. As to what constitutes proximate or recent, depends on the nature of the stolen item. 83. In the case of Arum vs Republic (2006)1KLR the court of appeal expressed itself that, for a court to convict under the doctrine of recent possession, prosecution must prove certain salient conditions inter alia; that the property in question was found with the suspect; the property was positively identified as that of the complainant; the property was stolen from the complainant and that the property was recently stolen from the complainant. 84. Once the said conditions have been satisfied, the evidential burden fall on the accused to show how he or she came into possession of the stolen goods. This is one of the rare cases that the burden is pushed towards the accused. See Mary Mwango Okeno and two others vs Republic (2018) eKLR and Malingi v Republic (1989) KLR225. 85. It is the law that once an accused person is found in possession of a recently stolen item, then the burden, unlike in all criminal cases where the burden of proof is the prosecution to discharge, shifts to that accused person to explain how he came to be in possession. See Paul Mwita Robi V Republic Ksm Criminal Appeal no. 200 of 2008, where this Court differently constituted stated; “ Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is (sic) especially within the knowledge https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 12

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of the accused and pursuant to the provisions of section 111 of the Evidence Act chapter 80, the accused has to discharge that burden. The provision states: “When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, qualification to the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him. 86. Thus, while the law is that generally in criminal trials, the prosecution has the burden of proving the case against the accused throughout and that burden does not shift to the accused, however, in a case where one is found in possession of a recently stolen property like in this case, the evidential burden shifts to him to explain his possession. That explanation only needs to be a plausible one but he needs to put it forward for the court’s consideration. 87. In the present appeal, the theft incidences are alleged to have occurred on three different occasions i.e. on the nights of 28th and 29th September 2020, 13th and 14th October 2020 and16th and 17th October 2020. Appellant was arrested on 21/10/2020, almost one month after the 1st incidence, seven days after the 2nd incidence and three days after the last incident. 88. The trial magistrate in his judgement stated that: “ I have taken time to consider what PW7 told the court. The fact that the accused persons left the vehicle and took off is suspicious. 89. On the above extract of the judgement, I am constrained to agree with the Appellant’s submission that the instant matter was purely based on suspicion and that suspicion however strong the same might be, must be held to be just. See PARVIN DHALAY VS REP.CR.APP. CA. NO 10 OF 1997 where the court held that; “ Suspicion upon suspicion remains just that-suspicion and that cannot and should never form the basis of a conviction as happened in the present case". 90. In his defence, the Appellant in giving his explanation of his possession of the allegedly stolen items, stated that he was employed by PW5 as a taxi driver of the subject vehicle. That on 28th and 29th September 2020 he was in Nyahururu where he had taken his employer. He used the vehicle herein. On 20/10/2020 he took the vehicle to Nyayo Estate in the evening. His employer told him that on 21/10/2020, she would give him a client who was to be picked at Tuskys Supermarket. The client indeed came to the place as instructed and put his luggage in the vehicle. He was unknown to the Appellant and was accompanied by someone who helped him to carry the items. That immediately police officers from Athi River Police Station came. The police asked him what he was carrying. The client left and did not come back. He was asked to call his employer so that she explains about the said client. The employer came and indicated that the client would be traced. She called the client who came and was arrested. The Appellant explained that he did not know the client and was asked to record his statement. He insisted that he was to be a witness in the case and did not know why he was charged alongside the client. He stated that the Investigating Officer was in communication with his employer. His employer confirmed that she had worked well with the Appellant for almost 3 years and she had promised to testify in the case. The Appellant denied that he was arrested on 20/10/2020 but on 21/10/2020. He denied that he alighted from the vehicle. He went to the police station himself. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 13

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That there was no reason for him to run away when he had not made any mistake. The items were in the vehicle courtesy of the 2nd Accused whom the Appellant had been sent to by his employer. 91. On the foregoing, I have no doubt in my mind that items recovered from the subject motor vehicle herein were stolen and that they were found in possession of the Appellant. That the recovery having been effected between one month and a few days respectively, the doctrine of recent possession applies. From the events preceding recovery and actual recovery of the items herein, it is my considered view that the Appellant defence clearly shows that he did not know that the items in the vehicle were stolen items and hence he discharged the burden of showing how he came into possession of the stolen goods. Since the prosecution brought no evidence to prove the Appellant knew or ought to have known the items were stolen, the Appellant’s defence on not being aware that the items were stole was unchallenged, unshaken. 92. In addition, I find that the prosecution’s allegations that the Appellant escaped after he knocked the police canteen has not been proved. I am left wondering why the prosecution did not charge the Appellant for the escape and the damage. 93. Had the learned trial magistrate duly considered the Appellant’s defence, I am convinced that he could have acquitted him for the offence charged. I am satisfied that the conviction entered herein was wholly unsafe and should not be allowed to stand. 94. Before I pen off, I will consider the Appellant’s ground of appeal on whether the trial Magistrate erred in application of section 333(2) of the Criminal Procedure Code thus disregarding the entire period that the appellant spent in remand. A perusal at the trial court’s record shows that the Appellant was arrested on 21/10/2020 and arraigned in court on 22/10/2020 for plea. He pleaded not guilty and a mention date on 24/11/2020 was given to determine bond/bail. The Appellant was thus remanded in custody at Kitengela Prison. On 24/10/2020, the Appellant was said to be in isolation and a further mention date on 21/12/2020 given with a production order issued. On 21/12/2020, the trial court called for a pre-bail report and hearing set for 9/2/2021 when the hearing proceeded, the pre-bail report was not availed. On 6/7/2021, the pre-bail report was ready and the Appellant and his co-accused were granted bond of Kshs.50,000/= and 1 surety of similar sum or alternative of Kshs.20,000/=. The record does not show whether the Appellant managed to be released on the bond terms. He was convicted on 30/1/2024 and sentenced on 12/2/2024. 95. Clearly, the Appellant must have spent some tome in custody pending trail of his case. In her judgment, the trial magistrate only considered the period spent in custody by the 3rd Accused to being computed in the sentence. Nothing was said about the Appellant. 96. Had this court upheld the Appellant’s conviction and sentence, it would have ordered that the period the Appellant spent in custody pending trial of his case be taken into account in his sentence. 97. Accordingly, appeal is allowed. The Conviction quashed and the sentence set aside. The Appellant should be set at liberty unless otherwise lawfully held. 98. Orders accordingly. This file is closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 14TH MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 14TH MAY 2025 In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 14

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.................... for Appellant ..................... for State ..................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14457/eng@2025-05-14 15

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