George Ratemo Otieno v Republic

2020, at [Particulars Withheld] Estate in Kantafu area of Matungulu Sub-county within Machakos County, with others not before the court, while armed with a panga, a knife and a hammer, he robbed E.W., a mobile phone make Samsung valued at Kshs7,000/=and at the time of the robbery, used actual violence to the said E.W.. 4. In Count four, he was charged with the offense of rape contrary to Section 3(1)(a)(b) (3) of the Sexual Offenses Act. The particulars were that on the 6th day of December 2020, at [Particulars Withheld] Estate in Kantafu area of Matungulu Sub-county within Machakos County, he intentionally and unlawfully caused his penis to penetrate the vagina of P.W.N without her consent. 5. In Count five, he was charged with the offense of defilement contrary to Section 8 (1)(4) of the Sexual Offenses Act. The particulars were that on the 6th day of December 2020, at [Particulars Withheld] Estate in the Kantafu area of Matungulu Sub-county within Machakos County, jointly with others not before the court, he intentionally caused his penis to penetrate the vagina of A.N.N a child aged 16 years. 6. He also faced an alternative charge of handling stolen goods contrary to Section 322 (1) (2) of the Penal Code. The particulars were that on diverse dates between 1st November and 30th day of November 2020 at Huruma Estate in Starehe Constituency within Nairobi County, otherwise than in the course of stealing, dishonestly undertook in the disposal of one mobile phone make Samsung Grand Prime valued at Kshs 12, 000/= knowing or having reason to believe it was stolen goods. 7. The Appellant pleaded not guilty to the charges. After hearing, the trial court found the appellant ‘guilty of the alternative charge of handling stolen goods contrary to Section 322 (1) (2) of the Penal Code, convicted him and sentenced him to serve 5 years imprisonment. He was acquitted for the charges in Count 1, 2, 3, 4 and 5. 8. Aggrieved by the decision of the trial court, the Appellant lodged this appeal on the grounds that; the Learned Trial Magistrate erred in law and in fact by convicting him on evidence that did not prove the elements of charge to the required threshold necessary to uphold a conviction; erred in both fact and law by failing to consider his sworn defence; erred in both fact and law by shifting the burden of proof to the appellant and erred in both fact and law by failing to make proper inference to the points of determination in her judgment by dint of Section 169 (1) of the CPC. 9. The appellant also filed amended supplementary grounds of appeal in which he contended that the Learned Trial Magistrate erred in both law and fact in finding that the appellant was not properly and positively identified by the prosecution witnesses yet went on to convict him on a lesser charge of handling stolen property, which was connected to the main count of robbery; the testimonies that tendered to establish the appellant’s mode of arrest was riddled with inconsistencies and doubts and were insufficient to sustain a conviction, particularly as the prosecution failed to call a vital witness who is the worker of PW1 and who allegedly purchased the phone in question; learned trial magistrate erred in law and fact by failing to find that the prosecution witnesses’ narration of event was unbelievable and incomprehensible; by failing to appreciate that the prosecution evidence was unreliable, being essentially the word of PW5 against that of the appellant; learned trial Magistrate failed to consider the totality of evidence which was doubtful in the circumstances; by failing to find that PW8 (the investigating officer) did not conduct any investigation beyond recording witness statements and erred in law facts by failing to appreciate that the prosecution had failed to prove its case to the standard required by law that is prove beyond reasonable doubt. B. Prosecution’s case 10. Before the trial court, the prosecution case was as follows; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 2

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11. PW1, PWN, a businesswoman, testified that at the material time she resided at Malaa 46, [Particulars Withheld] Estate. She stated that on 6th December 2020 at about 4.00 a.m., she was at home with her children. That her husband left the house at around that time, after which she returned to bed. Shortly thereafter, she heard some commotion emanating from the kitchen. She got up and looked outside but did not see anyone and initially thought the noise was coming from the neighbours’ premises. Moments later, she saw spotlights directed at her and observed three people who demanded her mobile phone and money while inquiring about the whereabouts of her husband. She informed them that her husband had already left. She stated that the assailants had concealed their faces and spoke in low tones, and that the one closest to her relayed her responses to the others. 12. She further testified that despite informing them that she only had Kshs 700/= kept in a jacket, the assailants ransacked the house, assaulted her, placed a panga on her neck, and locked her sisterin-law and daughter in one of the bedrooms. She stated that she and her daughter were sexually assaulted, while her sister-in-law was spared. Her ten-year-old son was locked in a separate bedroom and occasionally peeped out, believing the assailants to be police officers. She testified that the assailants remained in the house for about one hour as they were looking for her husband, after which they left. Upon checking the house, she discovered that a television set had been stolen, together with several mobile phones, including an Oppo phone, a Samsung phone, and another phone belonging to her sister-in-law. She stated that she informed the neighbours, reported the incident at Malaa Police Station, and was later taken by ambulance to a hospital in Eastleigh where she was issued with a P3 form. She further testified that the assailants were armed with pangas, a hammer, and stones. 13. She testified that in February of the following year, she was contacted by officers from Malaa Police Station and informed that a schoolgirl had been found in possession of her phone at Huruma. That the girl stated that the phone had been sold to her by the accused person. She further testified that she saw the accused in court and that her daughter informed her that she had seen the accused during the robbery. She stated that the assailant who came closest to her was of small build, while her daughter saw one of the assailants as being of bigger build. 14. Upon cross-examination, PW1 stated that she escorted her husband to the gate, opened and closed it, and then returned to the house. She clarified that she had not fallen asleep again when she heard banging noises, which she initially thought were coming from the neighbours. She further stated that she was later contacted by the police and informed that her phone had been recovered from a schoolgirl, who told the police that the accused person had sold the phone to her, as he was known to her. 15. PW2, A.N.N testified that she was a student and that on Sunday 6th December 2020 at about 4a.m, while asleep in a room with her brother, she saw torches shone into the room. She testified that she heard someone ask for her phone and she thought it was her father and told her to get out of bed where she put on a long top. She requested to be allowed to put on a trouser and they refused. She testified that the accused pulled her towards the door and she thought it was one person but when she got out of bed, she saw two others. 16. She further testified that her brother was sleeping on the lower decker. The assailants, armed with pangas and knives covered her brother and took her to her aunt’s room where her mother had also been taken. She further testified that the assailants spoke in low voices, ordered her to lie down cut her pant with a knife and raped her and her mother. She testified that the three assailants defiled her and her mother while her aunt was spared. Afterward, they covered them with a blanket and threw her 4 year old sister in the room. She stated that her father had just left that morning. 17. She further stated that after the robbers left, they searched for her brother; and found the kitchen door wide open They then sought help from their neighbours. She stated that they were threatened https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 3

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throughout the ordeal, preventing them from screaming, as pangas and knives were placed on their necks. The assailants demanded money and mobile phones, and stole their TV, wall clock and mobile phones. She testified that they later reported the incident at Malaa police station and were taken to hospital in Eastleigh. She stated that in 2020, she was 16 years old; she produced her birth certificate. She confirmed that she did not recognize any of the assailants during the incident. 18. On cross examination, PW2 testified that she had never seen the accused before and did not know the him. She confirmed that they reported the incident on 6th December 2020. 19. PW3, SN, testified that he was a student. That on the material date, he was asleep when he heard his sister being ordered to get out of bed and follow some people. He stated that he got up intending to follow her but was instructed to return to bed, which he did. After some time, he got up again and, although it was dark, he was able to see. He testified that he peeped through the window to observe what was happening and was again instructed by a second person to return to sleep. 20. He further stated that while peeping through the window, he saw two masked individuals running away, and a third person who was unmasked. He testified that he saw the unmasked person when he went to wake up his sister. Upon leaving his room, he met his mother outside the bedroom door, who informed him that they had been beaten. He stated that the assailants stole a television set, a wall clock bearing his photograph, and several mobile phones, including Samsung phones belonging to his sisters and an Oppo phone belonging to his mother. He stated that they went outside and screamed for help, after which neighbours responded and took them to the police station. He later recorded a statement at Malaa Police Station. He stated that he had never seen the unmasked person again and was unable to identify him. 21. Upon cross-examination, PW3 testified that he went to the police station where several people were lined up and he was asked to identify the person he had seen. He stated that all the persons in the lineup had their heads covered and that he did not see or identify the accused person. 22. PW4, EW, a farmer, testified that on 6th December 2020 she was asleep in her room and that her brother had already left for work. She stated that she suddenly saw torches being shone into her room and heard a voice say, “jifunike na ulete simu”. She testified that she handed over her mobile phone and remained lying down. She further testified that shortly thereafter, her sister-in-law and her niece were brought into the room, and they were ordered to undress. She stated that her sister-in-law and her niece were sexually assaulted, while she was instructed not to look at the assailants. She testified that her mattress was on the floor due to a back problem. She stated that when the assailants eventually left and the house became quiet, they went outside and sought help from neighbours, who took them to the police station. She testified that she owned two mobile phones: a basic phone (kabambe) and another phone which had been given to her by her husband, the make of which she did not initially know. She stated that there was some light coming from outside security lights and that she was a visitor in the home. 23. She further testified that they reported the incident at KBC Police Station, where she recorded a statement. She stated that the assailants did not take her kabambe phone but took the phone gifted to her by her husband. She testified that after reporting to the police, her sister-in-law and her niece were taken to hospital. She stated that she was unable to identify any of the assailants. 24. Upon cross-examination, PW4 testified that she saw three assailants but was unable to identify them as she was lying near the wall. She stated that in her statement she recorded that her stolen phone was a Samsung valued at Kshs 7,000/=. Upon re-examination, she clarified that she later recalled the make of the phone to be a Samsung. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 4

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25. PW5, KOO, testified that sometime in 2020 he went to see the appellant, whom he had known for a long time as they had previously engaged in business together. He stated that his wife operated a salon and that he had gone to the appellant’s residence to purchase some items. While there, he found the appellant in possession of two mobile phones, one being a touchscreen phone and the other a button phone. He testified that he expressed interest in purchasing a phone for his worker. That the appellant agreed and offered him a Samsung phone at a price of Kshs.3,500/=. He stated that he purchased the phone, paid for it in cash, and thereafter gave it to his worker to use. 26. He further testified that he later considered reselling the phone, as he was also involved in social media activities, and informed the appellant that he had found a buyer at the same price of Kshs.3,500/=, to which the appellant had no objection. 27. He further testified that in January 2021, officers from the Directorate of Criminal Investigations arrested him and took him to Huruma Police Station, where he was informed that the arrest was in connection with the said phone. He stated that he informed the police that he had purchased the phone from the appellant and offered to take them to him, which he did, leading to the appellant’s arrest. He testified that he was informed that the phone had been stolen from the Ukambani area, where a robbery had occurred in which a mother and her daughter were sexually assaulted. 28. He identified the appellant in court as the person from whom he had purchased the phone and testified that he knew him well. He further stated that the appellant was a supplier of salon and cosmetic goods to his wife’s business. 29. Upon cross-examination, PW5 testified that he purchased the phone in December 2020 but could not recall the exact date. He stated that at the time of his arrest, he did not have his written statement with him and that he and the appellant were subjected to harassment by the police. He reiterated that he purchased the phone in mid-December 2020. He testified that he requested a receipt from the appellant, but the appellant responded that such a phone would not ordinarily have a receipt. He further stated that this issue was not captured in his statement. He testified that the Appellant had two phones at the time and informed him that he was using the button phone, and offered him the Samsung phone, which did not have a SIM card. 30. PW6, Barbara Sala Lokewe, a clinical officer attached to MSF–Eastleigh, testified that he had worked there since February 2011 and that he is a specialist in sexual violence. He produced medical reports relating to two patients, although he was not the clinician who examined them. He stated that the examinations were conducted by Dr. Kennedy Ayiero, who worked at the facility between 2018 and January 2020 and was no longer in their employment. 31. He first referred to the medical report of PW1, and testified that she was examined on 6th December 2020 at about 3.00 p.m. and reported that she had been sexually assaulted earlier that morning at around 4.00 a.m. at Malaa by an unknown person. On examination, PW1 was noted to be sad, with no injuries on the external body. Genital examination revealed normal findings with an old broken hymen, no genital injuries, and a normal anal examination with no injuries. He testified that laboratory tests were conducted and spermatozoa were detected. He produced the PRC and P33 forms as Prosecution Exhibit 1(a), and 1(b) respectively. 32. With respect to the second medical report, PW6 testified that it related to PW2, A.N who was born on 17th March 2004 and resided in Malaa. She was also examined on 6th December 2020 at about 3.00 p.m. He testified that she was brought to the facility by her mother, PW1, and reported that she had been sexually assaulted at around 4.00 a.m. on the same day by three unknown persons. Upon examination, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 5

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she was noted to be sad and frightened, with no injuries on the external body and normal genital findings. 33. PW6 testified that both patients were examined by Dr. Kennedy Ayiero, who was employed at the facility between 2018 and January 2020. He stated that he did not know the accused person and that both complainants reported that they had been assaulted by unknown persons and did not identify the accused as one of the assailants. 34. PW7, Maureen Adhiambo, testified that she had completed high school the previous year. She stated that in November 2020, while she was at school, she was summoned by the Deputy Principal concerning a mobile phone found in her possession, and she was asked to explain how she had acquired it. She testified that she left school, went home, and surrendered the phone. She stated that she had purchased the phone through a friend known as Wycliffe at a cost of Kshs 3,500/=. She testified that she did not know why the phone was being sought, but confirmed that it was the same phone later shown to her by the police. She stated that she had used the phone for about one month during the school holidays and that she recorded a statement at Malaa Police Station. She further testified that she did not know the accused person. 35. Upon cross-examination, PW7 reiterated that she did not know the accused on the dock. 36. PW8, PC Ivy Onyango, testified that she was the investigating officer in the matter. She testified that the complainants reported that on 6th December 2020, while at their home in [Particulars Withheld] Estate, Malaa, at around 4.00 a.m., they were attacked by unknown assailants armed with weapons, who stole various household items and sexually assaulted the mother and her daughter. 37. She testified that the stolen items included an OPPO phone, two Samsung phones, a wall clock, and an LG 32-inch television set, all valued at Kshs.77,000/=. She stated that the complainants were taken to hospital the following day, where P3 forms were filled, and the medical reports confirmed that they had been sexually assaulted. 38. She further testified that during investigations, they recovered a Samsung mobile phone from PW7, Maureen Adhiambo. She stated that they liaised with Safaricom Limited and obtained call data records, which were produced as Prosecution Exhibit 7. PW7 led the investigators to other persons who had previously used the phone, and the trail ultimately led to the accused person. She testified that upon interrogation, the accused was unable to explain the source of the phone. Consequently, he was charged with the offences before the court. 39. She produced the recovered Samsung phone as Prosecution Exhibit 3, to be retained at the police station. She testified that the complainant identified the phone and stated that she had given it to her 16-year-old child prior to the incident. She further confirmed that the accused person before the court was the one arrested in connection with the matter and that she did not know him prior to the investigations. 40. Upon cross-examination, PW8 testified that she was not present at the time of the accused’s arrest. She stated that she was informed that the recovery of the phone led to the arrest of the accused. She testified that the accused was given an opportunity to explain how he came into possession of the phone and that the investigators relied on the witnesses who linked the accused to the recovered phone. She further stated that the investigation followed the chain of custody of the phone. 41. Upon the conclusion of the prosecution case, the trial court found a prima facie case had been established and placed the appellant on his defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 6

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C. Defence Case 42. The accused gave sworn evidence and did not call any other witnesses. 43. DW1, George Ratemo Otieno, testified that he was aware of the charges facing him. He testified that on 26th January 2021, after closing his place of work, he proceeded to his house at about 8.30 a.m. He stated that he received a phone call from a customer who ordinarily bought cosmetics from him, with whom he had previously had a disagreement that had since been resolved. He testified that the customer was to make a payment as part of the settlement, which she did. He further testified that at about 9.00 a.m., the same customer called and requested him to meet her in order to assist in talking to the police a person who had allegedly caused their earlier disagreement. 44. He stated that he had access to a vehicle and rushed to the location. Upon arrival, he called her and was instructed to move ahead, which he did. He testified that he was suddenly assaulted and thereafter handcuffed. He stated that he was taken to a kiosk where three other persons had been arrested, and he was informed that the arresting persons were officers from the Directorate of Criminal Investigations (DCI). He testified that he was informed that his arrest was in relation to an incident that had occurred in Matungulu. He stated that he was then taken to Huruma Police Station at about 10.00 p.m., where he was detained without being informed of the reason for his arrest. 45. DW1 further testified that thereafter, they were transported to Matungulu under threats of death. He stated that upon reaching Ruai, they were taken to a sewage area and ordered to alight and “face the music,” but he did not comply. He testified that they were later taken to KBC Police Station at about 2.00 a.m., and the following day, he was arraigned in court and charged. He stated that he was shocked to be charged with the offences of robbery with violence, defilement, rape, and handling stolen property. 46. With respect to the mobile phone produced as Prosecution Exhibit 3, DW1 denied selling the phone to PW5, Kenneth Otieno. He testified that he knew PW5 as a customer and had known him for some time. He stated that in mid-2020, PW5 visited his shop and that at the time, he was using an ITEL mobile phone to post his products online. He testified that PW5 requested to purchase that phone for Kshs 3,000/=, which amount was sent to him via mobile money, after which the transaction was concluded. He further testified that PW5 later involved him in the present case. 47. He stated that none of the complainants who were sexually assaulted identified him in the identification parades, which he stated were conducted on three occasions. He further testified that he was not supplied with the identification parade reports and that the parades were conducted by an inspector. He stated that one of the complainants’ children participated in the identification parade. He denied committing the offences and denied all the charges. 48. Upon cross-examination, DW1 testified that he knew PW5, Kenneth Otieno, very well, and that they were familiar with each other. He stated that during his arrest, he was threatened and that he informed the court of those threats. He conceded, however, that he did not report the alleged threats to the police and did not raise the issue with the investigating officer. He further testified that the investigating officer was not among the officers who arrested him and that although the investigating officer identified himself as a DCI officer, he did not inform him of the alleged threats. 49. Upon consideration of the totality of the evidence on record, the trial court found that the prosecution had not established its case to the required standards and proceeded to acquit the appellant on all counts save for the alternative charge. On the alternative charge the trial court held that the prosecution had established its case to the required standard and found the appellant guilty of handling stolen goods https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 7

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contrary to section 322(1) and (2) of the Penal Code. He was then convicted and sentenced to five years imprisonment. DIVISION - D. The Appeal 50. The appeal is as set out in the earlier paragraphs of this judgment. The appeal was disposed by way of written submissions. a. Appellant’s submissions 51. The appellant urged that there was nothing recovered from him save for the allegation that he had sold a phone to PW5 who in turn gave it to his worker and the worker subsequently sold it to PW7. He emphasized that the appeal concerns only with the alternative count of handling suspected stolen goods which he disputes. 52. He identified three issues for determination, that is: whether the appellant was arrested in possession of the alleged stolen phone make Samsung Grand Prime belonging to PW2; whether the appellant was properly identified as required by law; and whether the prosecution proved its case to the required standard of proof. 53. Relying on the case of Okeno versus Republic, he submitted on the duty of this Court as an appellate court. 54. On the first issue, he argued that the trial court solely relied on the evidence of PW5 who claimed to have sold the phone to him. He invited this Court to examine the dates in the alternative count where he was charged and convicted with the offence of handling stolen goods contrary to Section 322 (1) (2) of the Penal Code. That the particulars allege that on diverse dates between 1st November and 30th November 2020 at Huruma Estate in Starehe sub county within Nairobi County, otherwise than in the course of stealing, he dishonestly undertook in the disposal of one mobile phone make Samsung Grand Prime valued at Kshs 12,000/= knowing or having knowledge it was stolen goods. 55. He questioned whether he was guilty of the offence of handling stolen property under section 322 of the Penal Code. While making reference to the case of Tembere versus Republic [1990] KLR 393, he submitted that the evidence was inconsistent and contradictory, as the dates of the alleged handling differed from the particulars of the charge. Specifically, that the offence was stated to have been committed on 6th December 2020 while it was indicated that he was in possession of the said phone in November 2020. He urges the Court to find that the possession was not established within the meaning of Section 4(a) of the Penal Code and that the phone was never recovered from him. 56. On the failure to call a vital witness, the appellant referred to the case of Donald Majiwa Achilwa and 2 others versus Republic [2009] eKLR and Section 143 of the Evidence Act. He submitted that although the prosecution is not obliged to call a superfluity of witnesses, it must call sufficient witnesses to establish the charge beyond reasonable doubt. In this case the prosecution failed to call the person alleged to have sold the phone to PW7, who was found in possession of it. As a result, he urged that the case rested solely on PW5’s word against the appellant. 57. On the issue of proof, the appellant argued that the prosecution failed to establish how he was identified and arrested, save for PW5’s claim that he sold him his phone. Referring to the case of Charles Kibara Muraya versus Republic Nyeri Criminal Appeal No. 33 of 2001 and the case of Woolmington versus DPP [1935] AC 462, he submitted that the prosecution failed to prove beyond reasonable doubt that he was found in possession of stolen property. He therefore urged the Court to find that his conviction lacked legal basis and should be quashed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 8

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58. In conclusion, the appellant submitted that no proper investigation was conducted, or if it was, it was done poorly. He prayed that the appeal be allowed. SUBPARA b. Respondent’s submissions 59. The Respondent’s counsel submitted that based on the evidence of the prosecution witnesses, a robbery with violence indeed occurred at the homestead of PW1 on the morning of 6th December 2020. 60. While making reference to the provisions of Sections 295 and 296 of the Penal Code, counsel submitted that PW1, PW2, PW3 & PW4 all testified that they were accosted by three robbers who were armed with dangerous weapons including pangas, which were used to intimidate them by being placed on their necks and heads. Counsel further submitted that personal violence was inflicted against PW1 and PW2 through acts of rape and defilement respectively and that by the end of the ordeal the family had lost properties which was subsequently recovered. While citing the case of Ochieng & Another versus Republic [2025] KECA 13 (KLR), counsel argued that the elements of the offence of robbery were proved, sufficient to sustain a conviction and that the elements are to be read disjunctively and not conjunctively. 61. Counsel submits that from the definition of rape under Section 3 of the Sexual Offences Act, PW1 was raped. She did not consent to the sexual act but was coerced through intimidation when a panga was placed on her neck during the assault. Medical evidence confirmed the presence of spermatozoa in her vaginal swab shortly thereafter. Regarding defilement, PW2’s birth certificate was produced showing that she was 16 years old at the time of the ordeal. Counsel urged that the key question therefore is whether the accused/appellant was one of the three assailants which he answered in the affirmative submitting that the appellant was culpable for all the offences committed on that morning. 62. While making reference to Section 21 of the Penal Code and the case of Ochieng & Another versus Republic [2025] KECA 13 (KLR), counsel submits that none of the prosecution witnesses was able to recognize or identify the robbers during the incident as their faces were concealed. However. the recovered phone provided a circumstantial link to the appellant, which of necessity brings on board the doctrine of recent possession. Counsel emphasized that although the phone was not found in the appellant’s physical possession, it was traced back to him through the call data, Exhibit7 and the chain of people who handled it. 63. PW5's evidence was described as clear and candid as observed by the trial magistrate in the judgment. Counsel argued that the trial magistrate had the advantage of observing the witness’s demeanor, and PW5’s credibility was evident from his testimony. He further, submitted that the appellant never challenged the phone’s make during cross-examination of PW5 and this later claim that the phone was an ITEL rather than a Samsung was an afterthought. Counsel added that while the burden of proof lay with the prosecution, the Appellant bore the burden of dislodging the rebuttable presumption that possession of the phone linked him to the robbery. Counsel further, submitted that the phone was violently robbed from PW1 on 6th December 2020 and that PW5 testified that he bought the phone from the appellant in mid-December of 2020. This, counsel argued satisfy the requirement under the doctrine of recent possession that the property must have been recently stolen from the complainant. 64. In conclusion, the counsel submitted that the appellant was among the three robbers who violently robbed PW1, PW2 and PW3 of their properties. While making reference to Section 21 of the Penal Code and the case of Abonyo versus Republic [2025] KECA 608 (KLR), counsel argued that the three acted in concert committing the crime. Pursuant to the doctrine of common intention under Section 21 of the Penal Code, the appellant is culpable for every offence that was committed on thematerial morning. The Respondent urged this Court to find the appellant guilty of all counts of robbery with https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 9

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violence as charged as well as the rape and defilement of PW1 and PW2 respectively. Regarding the appellant's contestation of the dates indicated on the charge sheet being in variance with the evidence adduced, the Respondent’s counsel drew this Court’s attention to Section 214 (2) of the Criminal Procedure Code which provides that: “Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. E. Analysis and determination 65. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. However, it must bear in mind that it neither heard nor saw the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR. 66. Having considered the prosecution evidence, the defence, the grounds of appeal and submissions filed by both parties, I discern the only issue for determination is; whether the prosecution proved the offence of handling stolen property contrary to section 322 of the Penal Code beyond reasonable doubt. In delimiting this single issue for determination, this Court notes the submissions of the respondent where it invokes the doctrine of common intent and argues that the appellant was among the robbers and he is thus culpable of all the charges! This line of submission from the respondent is greatly misplaced. The appellant was acquitted on all counts and only convicted for the offence of handling stolen property. The respondent has not preferred any appeal on the acquittals. Hence, it has no locus to urge for the reversal of the same. It is the appellant who was aggrieved by his conviction on the alternative charge and that is the only matter this appellate court is called to consider. 67. To begin with, it is important to note thatthe conviction was for handling stolen property contrary to Section 322(1) of the Penal Code and Section 322(2) which prescribes the sentence section. 68. Section 322(1) of the Penal Code criminalises the act of dishonestly receiving or retaining stolen property, or dishonestly undertaking or assisting in its retention, removal, disposal or realisation, knowing or having reason to believe it to be stolen. The ingredients of the offence of handling stolen goods were restated in the case of Mungai vs. Republic [2006] 2 KLR 262, thus: “ Under section 322(1) of the Penal Code (cap 63), a person handles stolen goods if (otherwise than in the course of 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.” 69. 70. The essential ingredients of the offence are therefore: a. Proof that the property in question was stolen; b. Proof that the accused handled the property, whether by receiving, retaining or disposing of it; c. Proof that at the time of handling, the accused knew or had reason to believe that the property was stolen. In accordance with the provisions of Section 107 of the Evidence Act (Cap 80), the burden lay on the prosecution to prove all the elements of the offence beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 10

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71. There is no dispute that a robbery occurred on the morning of 6th December 2020 at the home of PW1, during which several items, including a Samsung Grand Prime mobile phone, were stolen. PW1 and PW2 positively identified the recovered phone as one of the stollen items. The fact of theft was therefore sufficiently established and so was the fact of ownership of the mobile phone subject of the conviction and this appeal. 72. The next question then is whether the prosecution proved that the appellant handled the said phone within the meaning of section 322 of the Penal Code. 73. The prosecution’s case rested on the testimony of PW5 and PW7 who are said to have come in possession of the phone. PW5 claimed to have bought a Samsung phone from the appellant in midDecember 2020 and later gave it to his worker, from whom the phone was eventually traced. The appellant denied selling a Samsung phone insisting instead that he sold an ITEL phone. 74. The record shows that the phone was not recovered from the physical possession of the appellant. The prosecution relied on a chain of transactions to link the recovered phone to the appellant through PW5, PW7 and call data records. While circumstantial evidence can sustain a conviction, it must be cogent, consistent and incapable of explanation upon any other reasonable hypothesis than that of guilt of the accused. 75. The doctrine of recent possession permits a court to draw an inference of guilt where an accused is found in possession of property recently stolen, unless a satisfactory explanation is offered. In Athuman Salim Athuman vs. Republic [2016] eKLR, this Court held that: “ The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how he came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. …..The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga Alias Peter Ng’ang’a Kahiga v. Republic, CR. App. No. 272 of 2005, where this Court stated: “ It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first that the property was found with the suspect, secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one to the other.” 76. Summarily, to successfully invoke the doctrine, the prosecution is required to prove: (i) that the property was found with the accused; (ii) that the property was positively identified as belonging to the complainant; (iii) that the property was recently stolen and (iv) that the accused failed to offer a reasonable explanation for such possession. 77. In the present case, while the phone was positively identified and shown to have been recently stolen, it was not found in the actual possession of the appellant. The prosecution sought to extend the doctrine to constructive possession through evidence that the appellant sold the phone shortly after the robbery. The trial court accepted PW5 testimony as credible, noting that he had known the appellant for a long time and that he purchased the Samsung phone from him. Upon a thorough examination of the record, I find the trial court’s finding not supported by the evidence on record. In tracing the chain of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 11

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custody, the same ought to be seamless and unbroken. It must not leave any questions or create lacunas in leading to the conclusion that an accused was found in possession of the stolen item. 78. First, PW1 indeed identified her stolen phone. She stated that she was informed that it had been recovered from a student. Immediately, by law, that student became the prime suspect. This student was PW7. She now bore the duty to explain how she got the phone. In her testimony she categorically said that she bought the phone through a friend called Wycliffe. Notably, this Wycliffe was not called as a witness. The Court is not even aware whether Wycliffe was ever questioned. Further, PW7 was categorical that she did not know the accused. It therefore follows that from PW7’s testimony, she never interacted with the appellant in her acquisition of the phone. To that extent, the prosecution’s evidence chain of custody broke and created gaps, which by law have to be interpreted in favour of the accused. 79. PW5 on his part, stated that he had bought the phone from the appellant and sold it to another person. Again, PW5 did not disclose to whom he sold this phone to after he allegedly bought it from the appellant. PW5 stated that before selling it to this person, he inquired from the appellant who said that he had no problem. Had this person been identified and called in evidence, he/she would have corroborated PW5’s evidence. Infact, PW5 did not state that he sold the phone to PW7, who was found in actual possession of the phone. Hence, even flowing from PW5, the chain of custody is clouded in lacunas. 80. Consequently, these lacunas, coupled with the defence evidence of the appellant that he sold an ITEL phone to PW5 and not a Samsung, which defence evidence, I find was not ably rebutted, I reach the conclusion that the prosecution did not prove the ingredient of possession of the stolen phone by the appellant. 81. While the above finding is enough to dispose of this appeal, there is a second issue of time that is material to this appeal and warrants consideration. While section 214(2) of the Criminal Procedure Code generally provides that variance as to time is not fatal in drafting of the charge sheet, there are cases and incidents when specificity in time and date goes to the core of a matter. In case where one is charged with the offence of handling stolen property, date and/or time is essential. This is based on the fact that that possession can only be material after the theft has occurred. One cannot be charged for having handled stolen goods when the said goods are indicated to have been stolen on an earlier date before the theft occurred. 82. In this case, the alternative charge indicated that “on diverse dates between 1st November and 30th day of November 2020 … otherwise than in the course of stealing, dishonestly undertook in the disposal of one mobile phone make Samsung Grand Prime valued at Kshs 12, 000/= knowing or having reason to believe it was stolen goods.” The robbery in this case happened on 6th December 2020. Clearly, that variance is not remote. Secondly, the framing of the period as “on diverse dates between 1st November and 30th day November 2020” further compounded the defect. If in issue was that the appellant was found with one mobile phone that was allegedly stolen, how would the finding have been on diverse date? He must actually just been found once, on a specific date, unless it is a matter where the appellant/ accused was found with several items on several dates, which is not the case herein. 83. Consequently, I find that in the circumstances of this case, the inconsistency does not involve variation of mere time that may be curable, but variation of dates, which goes to the substance of the charge, particularly where the offence of handling presupposes prior theft. The temporal disconnects between the particulars of the charge and the evidence adduced was material and was not and cannot be satisfactorily reconciled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 12

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84. Having therefore carefully re-evaluated the evidence and the applicable law, this Court finds that the prosecution failed to prove the offence of handling stolen property contrary to section 322 of the Penal Code beyond reasonable doubt. 85. Accordingly, the conviction of the appellant for the offence of handling stolen property was unsafe and is hereby quashed and the sentence of five (5) years’ imprisonment set aside. The appellant shall be released forthwith unless otherwise lawfully held. 86. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 16TH DAY OF MARCH, 2026 RHODA RUTTO JUDGE In the presence of; ……………………………..Appellant …………………………………Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3716/eng@2026-03-16 13

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