Republic v Salim (Criminal Case 151 of 2018) [2020] KEMC 22 (KLR)

3. After some delay4, hearing of the prosecution's case took ofi before me on 10.01.2019. The prosecutions called 5 witnesses and closed its case on 23.09.2019. On 05.12.2019, I analysed the evidence for the prosecution, and called upon the Defendant herein to make his defence after having found him with a case to answer. Pursuant to the call, the defendant herein soon thereafter gave his defence, closed his case and then submitted briefiy. 4. 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. 5. 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 4 6. The complainant herein, PW1, Esha Said, has 2 homes/ houses. one at Makare and the other one, the scene of crime herein, at Mwangaza village in Hola. She last occupying the house at Mwangaza in April, 2018. She however used to occasionally visit it. The house was securely locked. She last visited the house on 18.10.2018, and left it while intact. On 20.10.2018, 2 days later, she again went there and was shocked to find it having been broken into and several items stolen from therein. They included 3 mattresses, household utensils, dining table, radio, some clothes ( trousers and jacket), motorcycle parts and a sufuria. The motorcycle had been dismantled and some of its parts, were left there. She immediately made the report to the village head, PW4, Mwanahamisi Guyo. 7. 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 breaking in. The door to the house had been broken. She also confirmed that a motor cycle had been dismantled in the house. 8. Meanwhile, at around the same time, the defendant herein, took the dining table that was stolen from the complainant's house to PW2, Osman Guyo, in the presence of PW2's wife, PW3, Amina Osman, and pleaded with them to buy it, since he needed some money to survive. He was selling it at Ksh. 500/ =, which they bargained to Ksh. 300/=. PW3, Amina Osman, informed the court that he had suspected the table to be stolen. That he duly warned her husband against buying it but that they sympathised with the defendant who told them that he had no money and had not fed since the previous day. 9. PW5, NO. 113989 PC Mutunga Victor Otieno, of Hola police station received the report herein from the complainant on 22.10.2018. He and a colleague immediately went to the scene and confirmed the breakage at the door and the theft from therein. They were informed by the complainant and the village headman that the defendant herein was a suspect. The defendant had then been detained at the police station for another theft report. They went to his house, peeped inside and saw a motor cycle rim. He then went back to the police station, temporarily removed the defendant herein from the cells and went with him up to the scene at Mwangaza. The defendant was then asked to open his house which had been locked at the time. The defendant obliged. They recovered the rim from the house. They went with it back to the police station. The defendant was then interrogated. He informed the On 12.11.2018, some of the prosecution's documents were not in court; while on 29.11.2018, there was no witness present https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/22/eng@2020-01-23 2

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police oficers that he had sold the table herein to PW2 at a cost of Ksh. 300/=. They went with him up to PW2's house as Mwangaza. 10. Pw3, Osman Guyo, confirmed receiving the police oficers. The table was recovered from his place at the time. The oficer had also recovered some of the motor cycle parts that were left at the complainant's house. They were produced then as PEXH. NOS 1 and 2. The receipt of purchase of the motorcycle to prove that the complainant owned it were also presented to the police, and later produced herein as PEXH. NO. 3. The rim that was recovered at the defendant's house was also produced as PEXH. NO. 4. The table that was recovered from PW3's house was also produced as PEXH. NO. 5. 11. The defendant in his defence stated that he was arrested on 21.10.2018 at around 8.00pm while together with a colleague for the ofience of theft of iron sheet. That on 22.10.2018 at 10.00am, he was taken out of the cells by the investigating oficer herein and led to his house. That a search was done at his house which did not yield anything. He was then taken back to the police station. That later at 2.00pm., some items were brought from nowhere and planted on him. That on 30.10.2018, his coaccused was controversially released. He was however charged at Garsen Law Courts. Submissions 12. There were some submissions by the defendant at the close of hearing. The defendant submitted that the person who informed the complainant that he had broken into the house herein was not called as a witness. That the evidence of PW2 and PW3 difiered with respect to the time when he is alleged to have gone to their place to sell to them the table herein (PEXH. NO. 5) - whether it was at 7.00 am. as testified by PW2, or 1.00 pm., as testified to by PW3. That this means that he could have taken 2 difierent tables to them, yet the table that was brought to court was only 1. He also denied confessing to PW5, the investing oficer, that he is the one who committed the ofience. Issues, Burden and Standards of Proof 13. There may be no issue on whether the complainant's house was broken into and stolen therefrom as claimed and proved herein. No one, however, saw the defendants herein break or steal the items herein. The prosecution could therefore be relying on the doctrine of recent possession which is a presumption of likely fact under section 119 of the Evidence Act which provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 14. The prosecution must however first lay out admissible evidence to prove to the standard of beyond reasonable doubt that the complainant owned the items herein, the items were in the complainant's house, the house was broken into and the items stolen therefrom; and the defendant herein was found in possession of the stolen item. Upon proof of the possession, the next issue would be whether that fact of possession is suficient to sustain a conclusion that owing to the natural events, human conduct and public and private business, the defendant herein stole the items and going by the circumstances herein, had to break before stealing. 15. Let me state and clarify the principles of law germane to the consideration of this matter. Quoting R V Loughin (35 Cr App R. 69) The Court Of Appeal Held In Patrick Kabue Kimani And Others Vrs Republic (nbi Cr A No. 8 OF 1986 UR) that if it is proved that some property has been stolen and that very shortly afterwards, a man is found in possession of that property, then that is certainly evidence that that person/ man is the thief. This is the essence of the principle in the doctrine of recent possession that as aforestated is a rebuttable presumption of likely fact as provided for in section 119 of the Evidence Act. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/22/eng@2020-01-23 3

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16. For the doctrine of recent possession to apply and succeed against the defendant herein, the prosecution was therefore supposed to prove that the defendant herein was found with the stolen motor cycle herein very shortly after it was reported stolen. The Court of Appeal sitting at Kisumu in Arum Vrs Republic [2006] 1 KLR, 233, provided the following guiding principles on the application of the doctrine:a. b. 17. Before a Court can rely on the doctrine of recent possession as a basis of conviction in a criminal case, there must be positive proof; i. that the property was found with the suspect; ii. that the property was positively the property of the complainant; iii. that the property was stolen from the complainant; iv. that the property was recently stolen from the complainant. The proof as to time will depend on the easiness with which the stolen property can move from one person to another. Since the doctrine is a rebuttable presumption, once the prosecution have laid out suficient evidence that proves the facts giving rise to the applicability of the doctrine, the burden shifts to the defendant to rebut, or give a reasonable explanation on the circumstances that might have led him to so be in possession. These circumstances are peculiarly within his personal knowledge and the provisions of section 111(1) of the Evidence Act provides for such onus of proof on the defendant. The section provides as follows: Burden on accused in certain cases (1) When a person is accused of any ofience, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the ofience with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the ofience with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that ofience.5 18. 5 The Supreme Court recently explained in Supreme Court Petition 39 Of 2018 Republic Vrs Ahmad A. Mohammed & Anor. [2019] eKLR that section 111(1) of the Evidence Act deals with the burden of proof and only comes into play in the trial when the prosecution has proved, to the required standard of beyond reasonable doubt, that the accused person committed an ofience and part of the prosecution case comprises of a situation only 'within the knowledge' of the accused person so that if he does not ofier an explanation, he risks conviction. The Supreme Court went on to illustrate such scenarios as follows :'...in a murder case where part of the prosecution's case is that, prior to the deceased's death, the accused person is the one who was last seen with him'. The standard of proof on the part of the see GEOFFREY KIPROTICH V REPUBLIC [2011]eKLR https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/22/eng@2020-01-23 4

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defendant's rebuttal is a balance of probability, while that for the prosecution is beyond reasonable doubt. Determination 19. I see no reason to disbelieve the evidence herein that the complainant's door was indeed broken and the items stolen therefrom as stated. The complainant, PW4 and the police oficer (PW5) all confirmed that the house was broken into or outof and some items stolen. That among the items therein was a motor cycle which was vandalised ad some of its parts stolen. 20. Still the evidence of PW2 and PW3 confirms that the defendant herein had the stolen table (PEXH. NO.5) soon after the theft. Having been found with the table within the same locality and though no specific dates were given, it was in the same month of October, 2018, and therefore, given the nature of the item herein, a table, and how desperate the defendant herein appeared at the time of its disposal, I do find that the defendant was shortly after the theft or loss of the table and the other items herein, found by PW2 and PW3 while in possession of the table, which was confirmed to be the complainant's and was stolen when the complainant's house was broken into; and that therefore, in the absence of any reasonable explanation from the defendant, makes me conclude that he is the one who broke into or outof the complainants house and stole the table and the other associated items, including the motor cycle rim which was also found in his house. The defendant's defence has raised no reasonable explanation as to how he came to be in possession of the complainant's table or the rim soon after the same was reported stolen. I thus have no other option but to presume him the housebreaker and/or the thief. He is thus hereby found guilty. He was at least expected to ofier a reasonable explanation on the circumstances under which he came to be so found in possession. He is certainly the thief who broke into or outof the complainant's house and committed, or after committing, the theft therein. I have thus therefore entered a finding of guilt with respect to him. 21. The finding on the table herein, basically corroborates the prosecution's evidence that the rim of the vandalised motorcycle, was found in the defendant's house. The witnesses saw it while locked inside the house, when they peeped into the house. He was then in custody for a separate theft report. The defendant then led the police and the complainant to his house where the rim was physically recovered and confirmed to be the complainant's. The defendant is also the one who led the police to PW2 and PW3 where the table was sold and which led to the recovery of the table. Could this be an admission or a confession on the part of the defendant? 22. Though I may respectfully hold a contrary opinion6, 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, bearing in mind the distinction between an admission and a confession..., such admission is 6 The dissenting opinion of Justice Mohammed Ibrahim appears more appealing https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/22/eng@2020-01-23 5

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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....' 23. I have however already found suficient corroborative evidence herein. The fact that the rim was correctly and procedurally seen in the defendant's house, before he later voluntarily led the oficers herein to PW2 and PW3 where he had disposed of the table. PW2 and PW3 came to court and gave direct evidence on the circumstances under which the defendant herein went to them and pleaded with them to buy the table herein. Their contradiction with respect to time, i.e. whether it was in the morning hours as testified by PW2, or at noon as testified by PW3, is not that material herein. This is by virtue of section 214(2) of the 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...' 24. Both the table and the rim were proved to have been stolen from the complainant's house after it was broken into, or before it was broken outof. The defendant is thus correctly presumed to be the criminal who broke into or out of the complainant's house before or after stealing the items therein. I have thus enter a finding of guilt in the main count. Conclusion 25. Pursuant to the provision of section 215 of the Criminal Procedure Code, I do hereby convict the defendant herein of the ofience of House Breaking c/s 304(1)(b) and Stealing c/s 279 (b), both of the Penal Code as charged in the main 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/2020/22/eng@2020-01-23 6

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