Criminal Division & 1 other v Republic

a) That the trial court erred in law and fact on not finding that the prosecution witnesses contradicted each other and further failed to connect the date and time of the offence to the appellant. b) The court erred in convicting the appellant when there was no evidence supporting the same c) The court erred in failing to appreciate the fact that the evidence did not disclose an offence against the appellant and therefore the prosecution failed to prove its case beyond reasonable doubt. d) The court erred in convicting the appellant purely on circumstantial evidence when the same was based on strong suspicion theory and hypothesis with no basis in law. e) The court erred in ignoring the appellants defence and shifting the burden of proof to the appellant. SUBMISSIONS 3. Directions were issued on the hearing of the appeal by way of written submissions and the appellant on 26th September 2022 filed his written submissions in which it was contended that the prosecution did not prove its case beyond any reasonable doubt as the case was solely based on the evidence of PW2 Caleb Otieno an employee of the garbage evidence consisted only collection of hearsay firm whose which is inadmissible. It was submitted further that the case was based on circumstantial evidence which did not meet 2

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the legal threshold as set out in the case of Republic versus Kipkering Arap Koske. 4. It was contended that the there was no eye witness who saw the appellant commit the alleged offence an d that PW1 the General Manager only singled out the appellant amongst other seven colleagues who work in the same department of receiving goods on the basis of the allegations made by PW2 the Garbage collector and that the appellants defence was not properly analysed against the prosecution evidence, as it raised the possibility of fabrication in support of which the case of Ouma v Republic [1998] eKLR was tendered. 5. The prosecution in response thereto filed grounds of opposition dated 26th October 2022 in which it was stated that: a) The appeal is misconceived and unsubstantiated b) The appeal is an abuse of the court process since the appellant was properly convicted c) The appeal lacks merit. 6. On the 17th October 2023 the matter was listed for hearing before Kimondo J when the Advocate for the appellant indicated that he had not been served with the grounds of opposition and written submissions by the respondent and the matter taken out and fixed for mention for compliance on 15th may 2024 when it was fixed for highlighting of submissions on 22nd July 2024 when it was adjourned in the absence of the Appellant and his Counsel to the 22nd October 2024 when it was 3

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once again adjourned in the absence of the Advocate for the appellant to the 21st November 2024 when it was once again adjourned to enable the respondent file and serve written submissions. 7. On the 13th February 2025, the appeal was transferred to this criminal registry which matter was only pending highlighting of written submission which had been filed at Milimani. 8. At the hearing herein, Mr. Ruto for the appellant submitted that the date of the offence was not indicated and that in the judgement there were contradicting dates thereon. It was contended that the case was based solely on circumstantial and hearsay evidence which was not sufficient to sustain a conviction and further that the charge sheet was defective as regards the dates of the offence which was indicated to be on the 23rd April 2013 while the evidence in support thereof indicated that it was on 13th may 2013 and that there was no evidence that the appellant was in possession of the stolen items. 9. Ms Kariuki for the respondent submitted that the fact that the appellant was a servant of Naivas was proved through the letter of employment and that there was a typo error on the date of the offence which did not make the charge sheet defective as the appellant was able to respond and offer a defence to the same. PROCEEDINGS 4

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10. This being a first appeal, the court is under a duty to revaluate the proceedings before the trial court to come to its own conclusions thereon while giving allowance to the fact that unlike the trail court it did not have the advantage of seeing and hearing witnesses as was stated in Republic versus Okeno and as followed thereafter by the superior courts. 11. PW1 George Njuguna David stated that the appellant was working at the receiving department where they would put goods to the locations as directed. On the material day PW 2 who was working with the garbage collection company reported to him that the appellant had had taken four TV sets to the dustbin. It was his evidence that the appellant had moved the said TV sets from the store and kept them at the garbage area. 12. In cross examination he stated that the goods were received on 21st May 2013 and that PW2 informed him that the appellant had taken the TV sets to the garbage area as confirmed by the CCTV footage and that the goods were taken from the store at 6.00am and that when then appellant was arrested, he took the Security Manager to the place where he had kept the items. 13. PW2 Caleb Otieno Kavasa stated that he had been employed by the Garbage collection company who had been contracted to collect garbage for Naivas and that the appellant went to him and told him to help him remove some items from the premises in their motor vehicle. The following day the appellant told him that he 5

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had kept the goods ay the garbage area and that he told the appellant that he could not remove the said goods which were placed in a green sack from the premises and should therefore return them back, which led to an argument between them upon which he called PW1 and gave him the information. 14. He testified that the appellant was a good friend of his. In cross examination he stated that the appellant approached him on the 21st May 2013 with the request to help him remove the goods from the company premises and that he took PW1 to the place where the items were recovered in the absence of the Appellant. 15. PW3 PC Ramathan Yusuf receive the report of the theft and that he established that the appellant approached PW2 to assist him steal the items, he took on the 22nd May 2013 and placed at the garbage area which he wanted him to collect with the garbage and that he was positively identified by PW2. In cross examination he stated that the appellant was employed as a shop attendant and that the goods were removed from the store as per order of different shops and that the CCTV of the area was not very clear and that the goods were taken from the store illegally. 16. When put on his defence the appellant stated that he was working at Naivas store receiving side and that his duties were to receive goods arriving from different companies. On 28th May he went to the office of PW2who told him that four TV sets were found in the 6

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garbage by PW1 and that he was not captured in the CCTV and that he was thereafter taken to the police. He was not in possession of the said items as at the time of arrest. DETERMINATION 17. From the proceedings herein, the following issues seems to have been identified for determination: a) Whether the prosecution case against the appellant was proved to the required standard b) Whether there was contradiction on the date of the offence and if the charge sheet was defective on account of the same, which was fatal to the prosecution case. 18. From the proceedings herein and the submission by the parties, it is clear that this appeal is purely based on the issue of fact, that is to say the trial courts analysis and appreciation of the evidence tendered before it by both the appellant and the respondent. 19. The fact that the appellant was an employee of the complainant was not in disputed. The same was confirmed by PW1 ,PW2 PW3 and PW4 in their evidence in chief and the appellant in his defence. The fact that the said items were removed from the store by the appellant was confirmed through the evidence of PW1 whose evidence was that the appellant had approached him to help him remove the said items from the store a fact that the appellant did not deny in his defence. 7

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20. The prosecution case was therefore based on the evidence of PW2 and the circumstantial evidence to the effect that the appellant was working at the receiving area and that the same had requested PW2 who was working with the garbage collection company to assist him remove the said items from the company premises from the garbage area which he had initially accepted. Pw2 positively identified the appellant as the one who had taken the said items to the dustbin as per the evidence of PW1. 21. It is therefore clear that the circumstantial evidence produced before the trial court irresistibly pointed to the guilt of the appellant as he was the one who approached PW2 with a proposition to assist the same remove the items which were the property of the Naivas Supermarket confirmed wherein he was working as through his letter of appointment and therefore his conviction thereon was safe and free from error. 22. On the issue of the date of the commission of the offence, which the appellant contended was an error which went to the root of the charge sheet, PW3 the investing officer confirmed that the same was a typing error which did not go to the substance of the charge and would agree with the submissions by the respondent that the charge sheet contained adequate particulars of which the appellant was able to respond thereto and was not prejudiced at all. 8

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23. I therefore find and hold that his conviction was safe and free from error and that his appeal thereon lacks merit and is dismissed. 24. Sentence is a function of the trial court which can only be interfered with on appeal if the same is illegal or so excessive so as to amount to an error. There is no claim by the appellant that the sentence was erroneous. It is also noted that the appellant did not lodge an appeal thereon and will not interfere with the same. 25. In the final analysis I find no merit on the appeal herein both on conviction and sentence which I hereby dismiss and affirm the trial court finding thereon. 26. The appellant has right of appeal and it is ordered. DATED SIGNED AND DELIVERED THIS 17th DAY OF DECEMBER 2025 J WAKIAGA JUDGE In the presence of 9

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