Republic v Salim Waldea Maro

by her husband to untie the goats and leave with them for grazing. That the accused person even told her to call her husband on phone so as to confirm the information/ mission. She somehow did not verify the information from her husband, but still allowed the accused, who was then strange to her, to leave with the livestock. That later in the evening, the goats came back on their own, but that 3 were missing from the herd. It is then that she decided to go to her husband at the farm, where she passed over the information to him. PW2, BUYA BWANAIDI, received the report from his wife at around 5.00pm, and immediately abandoned his work at the farm and went home to check on the goats. 1 3. Meanwhile, on the same day in the morning at around 8.00am., PW3, Athman Salim, had left his home at Kone and went to the chief and later to work at Hola Hospital where he is a counsellor. At around 4.00pm, he went back home and found when his house had been broken into at the window and several clothes, shoes and phone accessory stolen therefrom. 4. On the same day at around 2.00pm, PW4, NO. 253752 PC Kasi Peter Ooko, of Hola Police Station was with colleagues on patrol duties when they got information from members of the public that a suspect had been arrested at the hospital area with a goat suspected to be stolen. They immediately rushed to the place and found the accused person herein already having been assaulted by members of the public and had no shirt on at the time. That he also had a bag with some clothes and shoes inside. They then took him to Hola City Restaurant where they found 5 he-goats that he had. They took him together with the items to the police station. 5. Meanwhile Pw2, Buya Bwanaidi, And Pw3, Athman Salim, both decided to report the separate theft incidents to the police station. According to PW4, NO. 253752 PC Kasi Peter Ooko, Pw2, Buya Bwanaidi, reported that 5 goats of his were missing, and that he identified the 5 goats that he had recovered at Hola City Restaurant to be the ones. 6. PW2, Buya Bwanaidi, however stated that he found his 3 missing goats tethered at the police station. That one of them was bigger than the other 2. That the accused person herein was then produced from the cells and that he saw him. In cross-examination, PW2, Buya Mwanaidi, wondered how his wife trusted the accused person that much to the extent of her releasing the goats to him. 7. PW3, Athman Salim, also identified his stolen clothes, shoes and phone batteries at the police station. He stated that the accused person was shown to him at the police station and that he saw him while wearing his shirt and shoes at the time. 8. The goats were not produced as exhibits herein, neither were their photographs. The prosecution suddenly closed its case on 06.05.2021 without adducing that bit of evidence. The clothes, shoes and phone accessory were however produced as follows: the bag where they were found, PEXH NO 2, 3 shirts, one of which was worn by the accused as PEXH. Nos 3A, 3B and 3C; Islamic rob (kanzu), PEXH. NO. 4; 2 vests, PEXH. NOS 5A and 5B; 2 pairs of trousers, PEXH. NOS 6A and 6B; 1 female pant, PEXH. NO 7; a pair of shoes which were worn by the accused person, PEXH. NO 8; and Phone batteries, PEXH. NO.9. 9. At the close of the prosecution’s case, I found that the prosecution had not proved a case against the accused with respect to the ofiences in the first count. I consequently dismissed the charges therein and acquitted the accused of the ofiences of Stealing Stock and Handling the Stolen Stock contrary to sections 278 and 322 (1) as read with 322(2), all of the Penal Code1. No reasons were given for the findings. I shall however include the same in my evidence analysis herein. 10. The accused was however called upon to make his defense with respect to the ofiences in the second count. In his defense, he stated that on the material day, he was relaxing at Hola City Restaurant after See the ruling on a case dated 20.05.2021. https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/15/eng@2021-05-27 2

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having arrived from Garsen, when some two people suddenly emerged and started to assault him. He was then shocked when it was alleged that he had broken into the house of Athman (PW3). He was then taken to the police and charged with the present ofiences. He denied committing the ofiences and submitted that the clothes that were produced herein resemble other clothes as there was no proof that they were exclusively belonging to Athman. That Hola is a busy town and he wondered why no one witnessed him commit the breaking. That the clothes that he is alleged to have stolen are his. That clothes are ordinary items that are usually bought without issuance of receipts. 11. All the issues herein are contested. The accused person was however found at Hola City Restaurant area. He however denies that he was found with the stolen items herein. The burden is therefore on the prosecutions to prove that the accused person was found with the recovered items herein. The standard of proof is beyond reasonable doubt, which was explained in Republic Vrs Silas Magongo Onzere Alias Fredrick Namema [2017] eKLR that: “ The burden of proof: It is the law in Kenya as entrenched in the constitution under Article 50 (2) (a) that an accused person is presumed to be innocent until the contrary is proved. The evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus: “whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.” As to what constitutes the burden of proof beyond reasonable doubt the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 provides as fiows in a passage alluded to me considered the greatest jurist of our time Lord Denning: “That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to defiect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favor which can be dismissed with the sentence of course it is doubt but nothing short of that will sufice.” “In our criminal justice system there is no duty on the accused to prove anything on the allegations of a criminal nature filed by the state in a court of law. That burden of proof of an accused guilt rests solely on the prosecution throughout the trial save where there are admissions by the accused person. So likewise, at the close of the prosecution case under section 307 (1) of the Criminal Procedure Code the prosecution must satisfy by way of the evidence presented so far that a prima facie case exists to warrant the accused person to be called upon to answer.” Analysis and Determination 12. In the first counts I found that no evidence had been tendered suficiently to prove that the accused person committed either of the ofiences in the count. For there to be the ofience of theft, or Handling Stolen Goods, there must be proof that something capable of being stolen’ in this case the 3 goats were stolen. I found the evidence of the goats that were alleged to have been stolen to be dodgy or shaky as at the close of the prosecution’s case. Were they 3, as confirmed by the prosecutions, or 5 as recovered? If they were 5, then where did the other 2 go? Are we then sure that the goats that were recovered herein are the same 3 goats that were stolen from the complainants herein? This doubt has been compounded by the fact that the photographs of the goats were not produced as https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/15/eng@2021-05-27 3

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evidence. As per PW1’s identification evidence, I find the same unreliable in light of the fact that the accused was a stranger, and also that the accused was arrested and in police custody at the time of the purported identification. In either case, her identification evidence required serious corroboration which, as will be seen hereinafter, is seriously lacking herein. I also do wonder why she failed to call her husband to verify the report that she allegedly received from the accused that he had been sent to pick the goats for grazing. Why did she then entrust such a stranger with the livestock before verifying the information and clearing the doubts from her husband? Having doubted the sole identification evidence of the accused person herein, the other aspect of the prosecution’s case was on the doctrine of recent possession. This is a doctrine of likely or unlikely facts under section 119 of the Evidence Act which presupposes that where something is stolen, and shortly thereafter, someone is found in possession of the stolen item, then that fact of recent possession is certainly proof that that person is the thief. 13. I however find no direct evidence of how the accused person was found in possession of the items recovered herein, more especially the goats which were confirmed to have been recovered later on at Hola City, while the accused person was found being assaulted at the Hospital area. There was need for the prosecution to call at last a member of the public who first found the accused person while allegedly in possession of the items herein, especially the 5 goats herein. Otherwise, it cannot be stated with the necessary degree of certainty that the goats which were at Hola City area, were in possession of the accused person, who was found at the Hospital area. The evidence of PW1 notwithstanding, the contradictions and gaps in the prosecution’s case as related the evidence of the goats that were stolen, those that were missing, and whether they were found in possession of the accused person was doubtful as at the close of the prosecution’s case and that was the reason why I found no need to call the accused person to make his defense in light of the doubts. He was entitled to acquittal even if he could have remained silent in his defense. 14. I however find the defense put forth by the accused person, that the clothes that are alleged to have been stolen could after all be his. This is because there is a glaring contradiction between the evidence of the police oficer and the complainant in count 2, PW3, of whether some of the clothes (PEXH NO 3) and the shoes (PEXH. NO. 8) were found while being worn by the accused or not. Whereas the police oficer who responded to the scene late informed the court that the accused was being assaulted and was arrested while naked at the torso, the complainant, PW3, informed the court that the accused wore the shirt and the shoe. Could the police therefore have allowed the accused to wear a suspected stolen shirt after his arrest? I just do not think that they could have done so, and if that was the position, then the prosecution ought to have clarified the same and the reason why that was done. This contradiction and omission make me believe the accused person that he was found and suspected with the clothes that he was wearing as there was no evidence adduced to make us believe that the clothes were uniquely for the complainant, PW3 and not any other person, including the accused person. Again, all these gaps would have been cured by the evidence of a member of the pubic who was present when the accused was allegedly first seen with the items. Failure to call these crucial witnesses leaves me with no option but to feel convinced by the accused person’s statement in defense that two unknown people accosted him and assaulted and framed him with the thefts herein. Otherwise all the available evidence ought to have been presented by the prosecution to clearly prove the accused person culpability. 15. With all these gaps and anomalies, I find the evidence adduced to have fallen short of the requisite standard of proof in a criminal case which is beyond reasonable doubt. I have already alluded to the doubts herein. Thus, the possibility of the items being planted on the accused person herein cannot be ruled out. I do hereby have no other option but to enter a finding of not guilty. https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/15/eng@2021-05-27 4

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16. The accused person is thus also hereby acquitted pursuant to the provisions of section 215 of the Criminal Procedure Code of the ofiences of House Breaking, Stealing and Handling Stolen Goods c/s 304(1)(b), 279(b) and 322(1) as read with 322(2), all of the Penal Code, respectively. This is in addition to the earlier acquittals under section 210 of the CPC. The accused person should therefore be released from custody forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 27THDAY OF MAY 2021 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Osman Prosecution counsel: Atika Accused person: Present 1st Victim: n/a 2nd Victim: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/15/eng@2021-05-27 5

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