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|Case Number:||Criminal Appeal 116 of 2004|
|Parties:||Alexander Tonny Lusimba v Republic|
|Date Delivered:||11 Mar 2016|
|Court:||Court of Appeal at Nairobi|
|Judge(s):||Wanjiru Karanja, Paul Kihara Kariuki, James Otieno Odek|
|Citation:||Alexander Tonny Lusimba v Republic  eKLR|
|Case History:||(An appeal from the judgment of the High Court of Kenya at Nairobi (Mbaluto & Kubo, JJ.) dated 7th October, 2003 in H.C.CR.A No. 292 of 1998)|
|History Docket No:||H.C.CR.A No. 292 of 1998|
|History Judges:||Benjamin Patrick Kubo, Tom Mbaluto|
|Case Outcome:||Appeal dismissed|
|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|
IN THE COURT OF APPEAL
(CORAM: KIHARA KARIUKI (PCA), KARANJA & ODEK, JJ.A)
CRIMINAL APPEAL NO. 116 OF 2004
ALEXANDER TONNY LUSIMBA ……………...……………. APPELLANT
REPUBLIC ……………………………………………..……. RESPONDENT
(An appeal from the judgment of the High Court of Kenya at Nairobi (Mbaluto & Kubo, JJ.) dated 7th October, 2003
H.C.CR.A No. 292 of 1998)
JUDGMENT OF THE COURT
“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari C/O Karanja -vs- R (1956) 17 EACA 146)”
Incidentally, the brief case also bore the name of the complainant PW2, A O, inscribed on it.
10. Mr. K. A. Nyachoti, learned counsel for the appellant, submitted that this was a case of mistaken identity; that the prevailing circumstances during the robbery were not condusive to warrant positive identification; that there was extreme violence on the complainant and her guests leading to the death of one of the guests. Counsel argued that the appellant had given a reasonable explanation for his possession of the brief case and the pair of shoes recovered from him - that he had purchased both the brief case and pair of shoes at an auction. It was submitted that the brief case bore the appellant’s name as proof of his ownership. Learned counsel for the appellant submitted that the prosecution ought to have called the appellant’s landlady to give evidence in respect of his arrest and recovery of the alleged stolen items. He urged the Court to draw an adverse inference for failure by the prosecution to call the landlady. He also submitted that the alleged confession by the appellant should not have been relied upon since the appellant repudiated the same. He urged us to allow the appeal.
“...a retracted statement occurs when the accused person admits that he made the statement recorded but now seeks to retract, take back what he said, generally on the ground that he had been forced or induced to make the statement, in other words that statement was not a voluntary one.”
Further in the above mentioned case, the predecessor of this Court at page 91 held as follows:-
“We would summarize the position thus- a trial court should accept any confession which has been retracted or repudiated with caution and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true.” See also MUNYAO -vs- R (2002) 2 KLR 504 and KOMORA -vs- R (1983) 583.
14. The trial court in admitting the repudiated confession correctly observed that the same required corroboration. In M'RIUNGU -vs- R (1983) KLR 455, this Court held at page 463:-
“As was stated in R-vs- Baskerville (1916) 2 KB 658 that corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime, and we agree that it must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him-that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it..”
“I cannot forget that person in my life wherever I see him and he is that accused seated in a black jacket. It is this accused who was told by his colleagues that he knows the work well and he pulled me and placed me between his legs and cut me before they later took me back down the stairs. He was to me like the in-charge of the operation. That incident took over one hour. The lights were on and nobody covered the face of anybody. We could see each other very well. When we went to the bedroom, he sat on the rocking chair first even before I was later handed over to him to do his work. Nobody stopped me that I should not look at them. My house has several lights on the roof, on the walls.”
“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”
“We lay down the minimum standard as follow;- The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence.”
Once the court is certain in its mind that the witness is honest, the court must proceed to consider whether the circumstances prevailing at the time and place of the incident favoured proper identification. The matters to be considered are matters such as the time when the offences took place, i.e. whether it was at night or in broad daylight.”
“This is my briefcase which I bought in 1985 from card centre to carry things for 2 days safari in Mombasa and that inside I had written this name O which I identified. They are my shoes although they look like somebody put them on a number of times. I placed this sole which I am in the habit of including the shoes that I have now.”
Peter Ng'ang'a Kahiga -vs- R Criminal Appeal No. 272 of 2005, this Court held,
“….It is trite that before a court of law can rely on the doctrine of recent possession as a basis for 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 person to the other.”
22. As regards the recovery of the items, the appellant contends that the prosecution ought to have called his landlady who was present to shed light on the same. The appellant did not deny that the briefcase and shoes were found and recovered in his house and we fail to understand what the landlady’s input on the recovery would be. Further, this Court has stated severally that there is no particular number of witnesses who are required for proof of any fact unless the law so requires. See Section 143 of the
23. PW2 identified the briefcase by his name which was inscribed therein; he also identified the recovered pair of shoes by the sole he had added to them. Consequently, the burden shifted to the appellant to offer a reasonable explanation for the said possession. In Malingi -vs- R (1988) KLR 225, this Court expressed itself as herein under:-
“By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly, that the item he has in his possession has been stolen; it has been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and the circumstances of the case recent…”
24. The appellant contended he purchased the recovered items from an auction. The trial court considered his evidence and found that his explanation was not satisfactory. There is a presumption in law that a person found in possession of recently stolen items is either the thief or the receiver. The testimony of PW1 places the appellant at the scene of crime and an active participant in the robbery. The role played by the appellant in the robbery is aptly narrated by PW1. The identification and placement of the appellant at the scene of crime rules out any possibility that the appellant was merely a receiver or handler of recently stolen goods. By actively participating in the crime, the appellant was not a receiver but one of the robbers. The appellant’s contention that the recovered items were purchased in an auction cannot stand in the face of the identification testimony of PW1. We are satisfied that the appellant was positively identified and placed at the scene of crime by PW1 as one of the robbers. We concur with the trial court and find that the appellant’s confession was corroborated with the evidence of identification and recent possession of the stolen items.
Dated and delivered at Nairobi this 11th day of March, 2016.
P. KIHARA KARIUKI, PCA
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.