Republic v Hassan (Criminal Case 152 of 2018) [2020] KEMC 17 (KLR)

a case to answer. Pursuant to the call, the defendant herein soon thereafter gave his defence, closed his case and then submitted briefiy. 4. On 10.01.2019, after the evidence of the complainant, the prosecution indicated that the complainant herein wished to withdraw his complaints, but did not further that wish as the other witnesses were promptly thereafter called to testify. 5. This matter has therefore been pending for this judgment on whether the prosecution has proved its case against the defendant herein to the required standards. All the other adjournments and the reasons therefor have been well recorded in the proceedings herein and as such do not require any additional explanation herein. 6. The defendant herein was unrepresented throughout the trial herein. He was also unable to meet the bond terms fixed herein and has therefore been in remand custody. The prosecution was on the other hand represented by Ms. Karanja Anthony, and Atika D., prosecution counsel, duly instructed by the Director of Public Prosecutions, who by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. The proceedings herein have been well recorded down in the trial notes herein. The Substantive Facts of The Case 7. The complainant herein, PW1, James Muigai Kamau, had left his house at Mwangaza, on 17.10.2018, because of fioods. He has gone to live with a friend at Kibuyu. He was however went back to his place on 20.10.2018, and found that the padlock to his house and other neighbouring houses had been broken. In his house, he found that some items, a mattress, a bed and a mosquito net, had been stolen therefrom. He immediately made the report to the village head, PW4, Mwanahamisi Guyo. 8. PW4, Mwanahamisi Guyo, confirmed receiving the report herein from the complainant on the same day, 20.10.2018. She immediately went to the scene with her and confirmed the breakage. The door to the house had been broken and was down. Some other houses were also broken into within the same compound. She advised the complainant to report the matter to the police. Another village elder, PW7, Elizabeth Malika, also confirmed receiving the report and also witnessed the recovery of the items herein from the defendant's house. 9. Meanwhile, on 19.10.2018, at around 9.00am, the defendant herein, was met and seen by PW2, Evans Barasa, while with a bed that he was selling. PW2 was however not able to buy the bed. The bed was later on 22.10.2018 found abandoned in PW3, Salim Mohamed's abandoned house at Mwangaza. 10. PW3, Salim Mohamed, made the report of the finding immediately to PW5, Mush Dhadho, who also went to the house and confirmed that the bed was there. He then advised PW3, Salim Mohamed, to report the matter to the police. 11. PW6, NO. 113989 PC Mutunga Victor Otieno, of Hola police station received the report of the theft and breaking herein from the complainant on 22.10.2018 at around 11.20 a.m. He and a colleague immediately went to the scene and confirmed the breakage at the door and the theft from therein. At the scene, they spotted the defendant herein who was then a suspect, while running away. The complainant immediately alerted them and they were able to give chase and eventually caught up with him. They escorted him to his house, and conducted a search therein, and were able to recover the mattress without a cover and a blue mosquito net which the complainant identified to be his, those that were stolen from his house. The defendant and the recovered items were then taken to the police station. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/17/eng@2020-01-23 2

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12. The defendant was put in custody. In the course of his interrogations, he volunteered to reveal where the other stolen items were. That there was a bed that he had disposed of to a friend at Mwangaza village. He was therefore temporarily removed from the cells and taken to Mwangaza so that he leads the oficers to the friend who had bought the bed. The friend (PW3) was not found at the place. His house was however open and a bed was recovered from therein. The complainant also identified it to be his, that which was stolen from his house. The bed, mattress, mosquito net and the broken padlock were produced as PEXH. NOS 1, 2, 3 and 4, respectively. 13. The defendant in his defence stated that he was arrested on 22.10.2018 while at Laza town (Hola). That the police oficers who arrested him then took him to his house, did a search at his house and then took him to the police station. He was however not informed of the crime that he had committed to warrant the arrest and the search. He was nevertheless charged with the ofiences herein. That the police later went to his home, found his wife and collected a mattress that he using at his farm. That there was however no proof that the mattress was stolen. That it is the headman who was pushing the police to implicate him with the ofiences herein. He was later shocked when the police came with a bed and another suspect who was however later released un a controversial circumstances. He denied selling the bed to the suspect as claimed herein. Submissions 14. There were some submissions by the defendant at the close of hearing. The defendant mainly submitted that the charges herein are frameworks. He denied committing any of the acts alleged herein. That the complainants herein came to withdraw their complaints herein which shows that the charges herein were malicious. Issues, Burden and Standards of Proof 15. There may be no issue on whether the complainant's house was broken into and stolen therefrom as claimed and proved herein. The charge herein as framed and answered to by the defendant herein also alleges that the defendant herein broke and stole a mattress, a mosquito net, 1 bed and 32 pipe rages from the house. 16. The charge having been conjunctively framed, rather than disjunctively, a conviction can be founded on the charge only if the prosecution proves all the elements or ingredients as framed against the defendant herein to the required standard of beyond reasonable doubt. 17. In the alternative charge, all that was required was proof to the required standard by the prosecution that the mattress, bed and mosquito net were stolen property, that the defendant herein dishonestly retained them, and that he knew or had reasons to believe them to be stolen goods. The issues for determination in the alternative charge are therefore framed as follows: a. Whether the defendant was found in possession of the bed, mattress and mosquito net herein? b. Whether the bed, mattress and mosquito net were stolen? c. Whether the defendant knew or had reasonable belief that the bed, mattress and mosquito net were stolen? Determination 17. I see no reason to disbelieve the evidence herein that the complainant's door was indeed broken or that the bed, mattress and mosquito net were stolen. The defendant failed to raise the issues of framework, or that the mattress was his, with the prosecution witnesses. The prosecution's evidence that the https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/17/eng@2020-01-23 3

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items were stolen from the complainant's house therefore remains unchallenged. The fact that the complainant at one point wanted to withdraw the complaints herein is neither here nor there, as the defendant ought to have sought for his recall with a view to cross-examine him on that wish. 18. In the main charge, the defendant was charged with house breaking and stealing a mattress, a mosquito net, a bed and 32 pipe rages. I have however failed to find any evidence to prove that 32 pipe rages were stolen from the complainant herein. There is absolutely no evidence that he owned any pipe rage that could have been stolen. That omission leaves the charge therein as unproved. In the circumstances, I do find that the prosecution has been unable to prove the main charge to the required standard. 19. This therefore leaves me with the alternative charge. On the issue of possession I have always ruled that possession involves having a degree of physical control over the item in issue, with the person in control knowing that they are so in his control2. That was the position in Warner Vrs Metropolitan Police Commissioner [1969] AC 256 and Republic Vrs Chatwood [1980] 1 ALL ER 567. In Kenya, one of the recent decisions on the issue is that in Peter Mwangi Kariuki Vrs Republic, , [2015]eKLR, where the learned High Court judge, Justice J. M. Mativo, at page 8 defines possession as follows: [P]ossession includes two elements; namely being in physical control of the item and to be guilty of possession, an accused person must be shown to have knowledge of two things, namely, that the accused knew the item was in his custody and secondly he knew that the item in question was prohibited. A person has possession of something if the person knows of its presence and has physical control of it, or has power and intention to control it. 17. I find that the defendant herein had the physical control of the bed when he was seen by PW2 while trying to dispose it ofi. PW2 was firm even during cross-examination that the defendant took to him the bed. That was on 19.10.2018, and was therefore soon after the theft herein. He therefore had physical control of the bed and he had all the requisite knowledge that he was so in control. That is the reason why he was ofiering it for sale. 18. On the other items, the mattress and the mosquito net, it is the evidence of the prosecution that the defendant led them to his house where the items were recovered. The defendant however states that he was implicated with the items, or that the mattress that was recovered from his house was his. I have already found that there was no evidence to challenge the prosecution's that the mattress was stolen from the complainant herein. 19. Though I may respectfully hold a contrary opinion3, I am bound by the finding of the Supreme Court while interpreting the provisions of sections 25, 25A, 111(1) and the repealed 31 of the Evidence Act, on evidence recovered through the help of a defendant during interrogation stage, when it held in Supreme Court Petition 39 Of 2018 Republic Vrs Ahmad A. Mohammed & Anor. [2019] eKLR thus: [W]e agree with the appellant that it is a matter of general public importance that the Police are given the freedom to carry out investigations with a view to detecting crimes. We also agree with it that interviewing suspects is a standard operating procedure in criminal investigation. In such interviews, Police are entitled to confront suspects with any report they may have received about the suspects' commission or involvement in the commission of a crime and demand an explanation. In response, a suspect may ofier an explanation. If it happens that the explanation the suspect gives is an admission of a material, ideally the Police are required to invoke the provisions of Section 25A of the Evidence Act. If they do not, 2 For example in Nyahururu Cmcrc 952/2014, Republic Vrs Leah Muthoni Ndirangu & 5 Others 3 The dissenting opinion of Justice Mohammed Ibrahim appears more appealing https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/17/eng@2020-01-23 4

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bearing in mind the distinction between an admission and a confession..., such admission is admissible in evidence but, unlike a confession, it cannot on its own found a conviction. It will require corroboration to found a conviction. It would be absurd if admissions made in such circumstances were to be held inadmissible in evidence....' 20. I however already found suficient corroborative evidence herein. The fact that the bed that was stolen alongside the mattress and the net herein were found to be in possession of the defendant herein on 19.10.2018, soon after their theft, by PW2, an independent witness corroborates the evidence herein that the defendant herein was involved with the theft or handling of the mattress, net and the bed, since they are said to have been stolen at the same time or place or in the course of the same transaction. 21. All the items herein were proved to have been stolen from the complainant's house after it was broken into, or before it was broken outof. The defendant has technically escaped from liability in the main charge simply because the prosecution failed to frame the charge therein in line with the evidence herein. Otherwise, I would have convicted the defendant herein for the ofiences of house breaking and stealing the mattress, bed and net, had the charge in the main count been limited to those items only. Otherwise I do hereby find that going by the evidence adduced herein, mainly the defendant attempting to quickly dispose of the bed herein, him running away when he saw the complainant and the police oficers, him taking the police to his house where the recoveries of the items were made, all prove to the required standard that the defendant knew or had reasonable belief that the items were stolen. It has indeed been proved that the items were stolen from the complainant herein. All the essential ingredients and/or elements of the ofience of Handling Stolen Goods have been proved to the required standard. I thus enter a finding of guilt in the alternative charge. The issue of the dates in the charge herein is not that material and should not therefore afiect the finding of guilt herein. This is in line with the provisions of section 214(2) of the Criminal Procedure Code Evidence Act which provides thus:- 'Variance between the charge and the evidence adduced in support of it with respect to the time at which an alleged ofience was committed is not material and the charge need not be amended for the variance...' Conclusion 22. Pursuant to the provision of section 215 of the Criminal Procedure Code, I do hereby convict the defendant herein of the ofience of Handling Stolen Goods c/s 322(1) as read with 322(2), both of the Penal Code as charged in the alternative count herein. I shall hereinafter receive the evidence and material, if any, relevant in sentencing. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 23RD DAY OF JANUARY , 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Prosecuting Counsel: Atika Defendant: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/17/eng@2020-01-23 5

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