Case ID:55831

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{'Case Number:': 'Criminal Appeal 84 of 2012', 'Parties:': 'George Odhiambo v Republic', 'Date Delivered:': '25 Oct 2013', 'Case Class:': 'Criminal', 'Court:': 'High Court at Kericho', 'Case Action:': 'Judgment', 'Judge(s):': 'Joseph Kiplagat Sergon, Byram Ongaya', 'Citation:': 'George Odhiambo v Republic [2013] eKLR', 'Case History:': '(Being An Appeal Against The Original Conviction And Sentence By The Honourable J. Ndururi, Principal Magistrate At Kericho In Criminal Case No. 517 Of 2012 In The Judgment Delivered On 30.11.2012)', 'Court Division:': 'Criminal', 'County:': 'Kericho', 'History Docket No:': 'Criminal Case No. 517 Of 2012', 'Case Summary:': 'REPUBLIC OF KENYA\n\nIN THE HIGH COURT OF KENYA AT KERICHO\n\nCRIMINAL APPEAL NO. 84 OF 2012\n\n(BEING AN APPEAL AGAINST THE ORIGINAL CONVICTION AND SENTENCE BY THE HONOURABLE J. NDURURI, PRINCIPAL MAGISTRATE AT KERICHO IN CRIMINAL CASE NO. 517 OF 2012 IN THE JUDGMENT DELIVERED ON 30.11.2012)\n\nGEORGE ODHIAMBO...........................APPELLANT\n\n-VERSUS-\n\nREPUBLIC............................................RESPONDENT\n\n\t(BEFORE HON. JUSTICE J.K. SERGON AND HON. JUSTICE BYRAM ONGAYA ON FRIDAY 25TH OCTOBER, 2013)\n\nJUDGMENT\n\n\tThe appellant is George Odhiambo. He was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code.\n\n\tThe particulars are that on the 23rd day of March 2012 at about 9.30p.m. at camp Steam Estate in Kericho Township in Kericho district within Rift Valley Province, jointly with others not before the trial court, robbed Nelson Magotian Kipkemoi of a mobile phone make Nokia 1280 valued at Kshs. 2,100/=, Kshs. 2,000 and an Equity Bank ATM card and at the time of such a robbery, used actual violence to the said Nelson Magotian Kipkemoi. In alternative, the appellant was charged with the offence of handling stolen property contrary to section 322 (2) of the Penal Code.\n\n\tIn the judgement, the learned trial Magistrate found that the prosecution had proved its case beyond all reasonable doubts and proceeded to convict the appellant as charged in count 1 pursuant to section 215 of the Criminal Procedure Code. The appellant was sentenced to death and has appealed against the conviction and sentence.\n\n\tThe grounds of appeal are that the learned trial magistrate erred both in law and fact:\n\n\n\t\tby basing conviction on unsafe, contradictory and inconsistent evidence of PW1, PW2, PW3 and PW4;\n\n\t\tby making a conviction without a finding that there was no documentary evidence to prove possession;\n\n\t\tby making a conviction without making a finding that the mode of the appellant’s arrest did not connect him with the alleged robbery; and\n\n\t\tby rejecting the appellant’s testimony which was sufficient to secure an acquittal.\n\n\n\tOn the first ground, the appellant submitted that PW1 testified that the make of the phone robbed from him was Nokia 1280 and the serial number on the receipt was 351524044441115. The court has perused the receipt being exhibit P3 and notes that the serial number is the same only that a 4 is added just before the triple 1 suggesting unexplained amendment of the serial number on the receipt in issue. It is further noted that the additional 4 is conspicuously in a different handwriting from the other handwritten 4s in the serial number. Further, the receipt is issued to “Nelson Makutiano” whereas the complainant’s name is “Nelson Magotian Kipkemoi” as per the charge sheet.\n\n\tThe appellant has also submitted that PW3 being the police officer who arrested the appellant found the appellant in possession of a Nokia 1280 which was booked in the occurrence book as IMEI No. 35152404-4441115. In his testimony, he repeats the serial number on the phone as 351524-0444411115 and proceeds to assert, “Yes, it is the same number. The victim told us he was from a bar heading home and that he was attacked by two young men who robbed him.”\n\n\tThe court has looked at the trial court’s record as reproduced above and it is clear that there are inconsistencies in the serial number of the phone in question as well as the owner of the phone. The court notes that it is said by PW3 that the appellant was arrested only a few minutes after the alleged robbery on the night of 23.3.2012 at 9p.m.\n\n\tThe evidence of PW4 the investigating officer is that after arresting the appellant on 23.3.2012 at about 9p.m. he inserted a SIM card in the phone the following day and switched it on. He further testified that from one of the messages he found in the phone he was able to trace the complainant who then produced the receipt bearing the serial number of the phone and which this court has found to be disputable.\n\n\tThe following questions, in the opinion of this court are pertinent and unanswered:\n\n\n\t\tWhy did the complainant being a well informed prison warder fail to make a report at the police following the alleged robbery with violence on 23.3.2012 at about 9p.m? The record shows that he had to be traced the following day when he already, in view of the evidence before the trial court, the police officers PW3 and PW4 had found him at the scene of the alleged crime on the night of 23.3.2012.\n\n\t\tWhy is it that PW4 did not take immediate steps following the arrest of the appellant on 23.3.2012 about 9p.m to insert the SIM card and swiftly make progress in the investigation especially, as alleged, other culprits had just escaped and needed to be apprehended?\n\n\t\tPW2 testified that he recalled it was 23.3.2012 at about 8.30p.m and then contradicts himself to say that it was about 9.30p.m. He then proceeds to state that he saw the complainant who was shouting that he was being killed sitting down outside the gate and he was injured. He does not testify the assistance he rendered to the injured complainant but more important from PW2’s evidence, the police officers PW3 and PW4 who arrived at the scene shortly thereafter in 10 to 15 minutes (as per PW3 at page 12 of the proceedings) found the complainant at the scene. The evidence shows that PW4 had to discover the identity of the complainant the following day as earlier explained in this judgment whereas there was ample time and opportunity to know the identity of the complainant at the scene of the alleged offence. Why did PW2, PW3 and PW4 fail to seize the earliest opportunity presented at the scene of the crime to know the identity of the complainant PW1?\n\n\t\tIt is alleged that PW1 was robbed of a mobile phone make Nokia 1280 valued at Kshs. 2,100/=, Kshs. 2,000 and an Equity Bank ATM card. Why is it that no evidence was provided to the trial court to establish that PW1 owned the Equity Bank ATM card, subject of the alleged robbery?\n\n\n\tThe court has considered the foregoing unanswered questions and finds that there was no evidence directly linking the appellant to the offence and the circumstantial evidence upon which the conviction was founded was insufficient to sustain the conviction.\n\n\tThe court finds that the appellant has a valid ground of appeal that an inventory of the items found in his possession was not presented to the trial court and the police record on the allegations was not presented to the court to establish the possession as alleged. Thus, this court finds that the record of the occurrence of the alleged crime, in the circumstances of this case, prepared in accordance with section 18 of the Police Act was necessary evidence to establish possession of the Nokia phone in issue. It remains unanswered whether PW1 ever made a report to the police about the alleged robbery with violence. The trial court’s record shows that PW3 and PW4 consistently took initiative to nail the appellant with the commission of the offence in circumstances whereby PW1’s evidence was that he did not recall the identity of any of his assailants. The day following the night of the alleged robbery saw PW1 at work disinterested in the alleged robbery and PW4 testified that on that day he had to go tracing PW1. Such unexplained initiative by PW3 and PW4 and which was not backed by the relevant police records renders the appellant’s evidence in the defence credible; thus, that he did not commit the offence at all, he thought he would be charged with an offence concerning lack of a job card and the reason he appeared in court was because the police officer demanded Kshs. 500 from him but he didn’t give him.\n\n\tIn conclusion, the court finds that there was no sufficient circumstantial evidence before the trial court establishing the offence of robbery with violence to sustain a conviction against the appellant. Accordingly, the court orders that the appellant be released forthwith unless otherwise lawfully held.\n\nSigned, dated and delivered in court at Kericho this Friday, 25th October, 2013.\n\nJ.K. SERGON \n\nJUDGE\n\nAnd\n\nBYRAM ONGAYA\n\nJUDGE', 'History Magistrate:': 'J. Ndurur', 'History Advocates:': 'Both Parties Represented', 'History County:': 'Kericho', 'Case Outcome:': 'Allowed', 'Disclaimer:': 'The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information'}