IN THE COURT OF APPEAL

AT BUSIA

(CORAM: ONYANGO OTIENO. AZANGALALA & KANTAI, JJ.A)

CRIMINAL APPEAL NO. 414 OF 2010

BETWEEN

CYPRIAN INGIRA IKOBWA  ..............................................1^ST APPELLANT

STEPHEN AKHONYA MUSONYE ..................................... 2^ND APPELLANT

AND

REPUBLIC ............................................................................. RESPONDENT

(Appeal from Judgement of the High Court of Kenya at Kakamega (Muchemi & Chitembwe, JJ) dated 8th June, 2010

in

KAK. HCCRA NO. 79 OF 2006

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JUDGEMENT OF THE COURT

In  this second  appeal,  Cyprian Ingira Ikobwa ( 1^st appellant) and  Stephen Akhonya Musonye (2^nd  appellant)  challenge their convictions  and sentences by the Chief  Magistrate's  Court,  Kakamega  for  two  offences  of  robbery  with  violence contrary to section 296 (2) of the Penal Code, one offence of being in possession of a  firearm  without  a  Firearms  Certificate  contrary  to section 4 (1) as  read  with section 4 (3) (a) of the Firearms  Act  and one  offence  of being  in  possession  of ammunition  without  a Firearm's  Certificate  contrary  to section 4 (1) as read with section 4 (3) (a) of the same Act.

The particulars of the first count were that the appellants on 7^th  February, 2005 at Shibuye area in Kakamega District within Western Province, jointly with others not before court, while armed with dangerous weapons namely a pistol, robbed Collins Wanga of  cash sum of  Kshs.11,000/= and  immediately before  or immediately after the time of such robbery threatened to shoot the said Collins Wanga.   The second count stated that  the appellants in consort with  others not before court on the same date, at the same place and while similarly armed, robbed Dave Koech of one mobile phone-make Alcatel valued at Kshs.5,500/= and immediately before or immediately after the time of such  robbery threatened to shoot the said Dave Koech.  The third count was that of being in possession of a firearm without a Firearms Certificate in that the appellants on the same date and at the same place jointly with others not before the court were found in possession of a pistol - make Browning serial number 245pm 49599 without a Firearms Certificate. The fourth count was of being in possession of ammunition without a Firearms Certificate in that on the same date and at the same place the appellants, jointly with others not before the court, were found with two rounds of ammunition without a Firearms Certificate.

The appellants pleaded not guilty but after a full hearing in which nine prosecution witnesses testified and the appellants also made sworn statements in their defence, they were convicted as charged and each sentenced to death on the 1^st  count of robbery with violence  and to seven years imprisonment  each on the third and  fourth  counts  of  being  in  possession  of  a  firearm  and  ammunition  without Firearms Certificates.  The sentence on count two was left in abeyance whilst the sentences on counts three and four were to run concurrently.

The appellants appealed to the High Court  but their  appeals were dismissed and hence this second appeal.

Section 361 (1) of the Criminal Procedure Code provides that this Court's jurisdiction is confined to matters of law only.   Looking through the appellants' respective memoranda of appeal and the submissions of learned counsel for the appellants Mr. Onsongo and Mr. Okuta, the following broad issues of  law have been raised:

(1)        Failure of the High Court to re-evaluate the evidence;

(2)        Weak evidence of identification or identification which was not positive;

(3)        Improper application of the doctrine of recent possession;

 (4)       Reliance upon inadmissible evidence;

(5)        Failure to prove the case beyond reasonable doubt;

(6)        Shifting the burden of proof;

The  background facts  are  in  our  view  straight  forward  and  disclose  three narratives. The first narrative was  as follows:-  Collins Wanga (PW1) (Wanga) Javan Morara Rioba (PW2) (Rioba) and Mohammed Salim Ghalib (PW4) (Salim) at the material  time were employed  by New Salama Bakery  of Bungoma.   Wanga was a salesman, Salim a driver and Rioba a turnboy. On 7^th February, 2005 the three set off from Bungoma in motor vehicle registration number KAR 909B for Kapsabet as they sold bread en-route.   On their way back, they took the Shinyalu-Khayega route.        As 6.00 pm approached, they reached Shibuye area where a man with  a handcart appeared on the road and could not give way to the trio.  Wanga, who was then driving the motor vehicle, stopped and reversed the motor vehicle.  As he did so, two men emerged from the side of the road and one of them shot at Wanga but missed.   The other ordered him to lie down in the motor vehicle.   He obeyed.   A second shot was fired which passed above the bonnet.   Salim and Rioba fled from the vehicle as the attackers demanded money from Wanga.  They ransacked his pockets and took Kshs.11,000/= but still demanded more money which Wanga said was with his collegues who had fled. A pick-up track appeared on the scene from the opposite side and the attacker with the pistol rushed towards it as the other guarded Wanga.  When  the  people  in  the  pick-up  were  subdued  the  attacker  who  was guarding Wanga left guarding him to join his colleague who was with the pick-up victims.  Wanga got the chance to escape and ran to a nearby homestead.  Members of the public were attracted to the scene by the -gunshots and engaged the attackers with stones.

It would appear from our reading of the record that Wanga, Salim and Rioba returned to the scene at different times but before proceeding with that aspect of the narrative, we tum to the second narrative involving the attack on the people in the pick-up registration number KAG 309K.  On the same 7^th February, 2005 at about the same time the said motor vehicle was being driven by Daniel Kimutai  Koech (PW 5) (Koech) along Khayega - Shinyalu road heading to Kapsabet.  He was with one Kimangetich.   As they approached Shibuye area at a place called Irobo, they saw a handcart infront of a canter motor vehicle and thought there had been an accident.  Within no time two people, one armed with a pistol, approached Koech and demanded the ignition key of his vehicle.  He surrendered the same.  Koech and his companion were then ordered to lie down on the floor of the pick-up with one attacker lying on them. The other attacker tried to drive the pick-up without success and demanded that Koech drives it.  Koech however informed him that he too could not as the pick-up had stalled.   The attackers then moved out of the pick-up and started running away but not before taking his Alcatel mobile phone.  Koech then heard gunshots and shouts from members of the public to the effect: "ua" "ua" ("kill" "kill").

Salim seems to have been the first to return to the scene from his hideout. We say so, because the record shows he returned to see the thug who had a pistol being stoned to death by members of the public.  He also saw another thug attempt to run away but was again stoned to death.  Salim also saw a third attacker almost being lynched by members of the public.

Wanga and Rioba would appear to have returned to the scene almost at the same time after Salim.  We say so, because of what they said in their testimonies at the trial. Rioba said:-

"I came back and met Collins. Mohammed told us that one gangster had been killed. I rushed to the scene and found members of the public lynching another gangster."

And Wanga said:-

"I later heard that one of the gangsters had been killed by members of the public.   I went out of the home where I had taken refugee (sic) and proceeded to the scene where I found two gangsters had already been-killed.  I sent - bicycle taxi operator to go and report the incident to Shinyalu AP Camp."

It is not clear from the record whether the APs and police officers arrived at the scene separately or at the same time.   According to Wanga, APs responded quickly and rescued one of the people who were being attacked by members of the public.  They arrested him and took him to their camp and when they returned, they found when police officers had arrived at  the  scene.  This version of events received support from Rioba.

The  version  given  by  PC  Benard  Amboko  (PW6)  (PC  Amboko)  was somewhat different.  He testified that when he was informed of the robbery at about 5.45 p.m., he rushed to the scene with other police officers and found when two people had been killed and the 1^st appellant had been beaten by members of the public and lay on the ground semiconscious.   He rescued him and took him to Shinyalu DO's office.  He returned to the scene then took the handcart, the bodies of the  two  attackers  who  had  been  killed  and  a  firearm  loaded  with  4  rounds  of ammunition  recovered  at the scene.   The handcart was kept at Kakamega  policestation and the bodies were taken to Kakamega General Hospital mortuary.  He then went back to Shinyalu D.O's office and escorted the 1^st appellant to Kakamega Police station after interrogating him.

PC  Amboko  also  arrested  the  2^nd appellant  who  was  said  to  have  given Dennis Makaka Ligami (PW7) (Ligami) a mobile phone which was later identified by Koech, one of the victims of the robbery.   PC Amboko also sent the recovered firearm  with  the  rounds  of  ammunition  to  Emanuel Langat (PW8)  (Langat),  a forensic  firearms  examiner,  for  examination.   The latter demonstrated  that  the firearm was capable of firing the ammunition which was found in it.

The third narrative involved Silvanus Ashiono (PW3) (Ashiono).   Before the aforesaid robberies, Ashiono, a farmer-cum- businessman, lost his handcart.    That was on 2^nd February, 2005. He reported the loss to the area Assistant Chief who promised   to investigate.   On 19^th February, 2005 police officers from Kakamega police station went to his home and invited him to the police station to check on a handcart which had been recovered at a robbery scene.  He went to the police station and confirmed   that the handcart was indeed   his. The   handcart was later photographed by CPL Frank Anunda (PW9) of Bungoma scenes  of crime  office which photograph he produced at the trial.

The appellants were then charged with the offences stated herein above.  The 1^st appellant, in a sworn statement, denied committing the offences.  He testified that on the morning of 7^th February, 2005 he set off on his bicycle to sell his products - baking pans.  He supplied his customers along Mutemo-Malinya-Shinyalu road and at 5.00 pm commenced his return journey.  His bicycle developed problems near Shinyalu AP camp and started zig-zagging on the road.  A pick-up which was following him hit him by its side mirror and he fell on the road.   The pick-up stopped and its occupants beat him up for nearly causing an accident.  APs enquired about what was happening and the pick-up driver informed them that he had nearly caused an accident.   He was then taken in by the APs who  later  took him to Kakamega Police station where he was later charged.

The 2^nd appellant, also in a sworn statement, denied committing the offences. He testified that on 8^th  February, 2005 he operated his bicycle taxi business in Kakamega town as usual until a police officer arrested him at Amalemba area in Kakamega town  and  took  him to Kakamega  Police  station where  he was  later charged as already stated. It was his defence that his neighbour, Ligami, -had framed him.

In his judgment, the learned Senior Resident Magistrate (E.O. Obaga) set out the evidence which was before him in some detail and having done so, addressed himself to the ingredients of the offences the appellants faced.  He stated thus:-

"There is no doubt that the complainant (sic) were violently robbed. There is  evidence that  the  thugs  were  armed with dangerous weapon to wit a pistol which was recovered at the scene and was produced as Exhibit 1. This pistol was taken to a ballistic expert PW8 Emmanuel Langat who examined it and found it to be in working condition. He certified it as a pistol which was capable of firing as defined under the Firearms Act  . The thugs were in a group some of whom were felled down by irate members of the public. There is evidence that there were 2 live ammunition which were in the recovered pistol which were also sent to a ballistic expert The two live ammunitions were tested by PW 8 using the recovered pistol and were confirmed to be live ammunition as defined in the Firearms Act Chapter 144 Laws of Kenya."

On the issue of identification of the 1^st appellant, the learned trial magistrate stated:-

"The 1^st accused was arrested at the scene of robbery and served (sic) from being lynched. The robbery took place at around 6.00 pm.  There was no darkness.  The 1^st accused was also seen by PW2 Evans Mwara Rioba and PW4 Mohammed Salim Ghalib. The two witnesses that is PW2 and PW4 were at the driver's cabin and they all saw the 1^st accused who was pulling the handcart. This was before darkness and therefore there can be no question of mistaken identity."

With regard to the 2nd appellant, the learned trial magistrate stated:-

"Though the evidence of PW2, 4 and 5 is that they saw the 2^nd accused among the robbers,  this  evidence  is one described in practice as dock identification. Dock identification though known to be one of the weakest forms of identification, I nevertheless accept the same given that the robbery took place during day time and the witnessess who saw him had the opportunity to do so. PW5 at first thought  that the Canter which  he  saw ahead had  hit  a handcart but realised that this was not the case when the two  were  (sic)  hurried  to  where  his  pick-up  was  and ordered him out of the driving seat. There is no evidence that the 2^nd accused was masked. There was time for him to see the 2^nd accused.    I  therefore find  that  the  dock identification coupled  with the  fact that 2^nd  accused took the phone to 7^th prosecution witness is enough  to make a finding  that  the  2^nd accused was  actually  among  the robbers.”

On the doctrine of recent possession the learned trial magistrate stated:-

"....there-is evidence- from PW7 Dennis-Maka-Ligami that a few hours after  the  robbery the  2^nd accused  brought  an  Alcatel mobile phone which he told PW7 that he had picked up  from Muliro gardens in Kakamega Town. He asked PW7 to operate it for him so that he (accused) could make a call to his sister. After  PW9  opened  the  keypad  he  handed  the  phone  to 2^nd  accused to call but as the accused tried to call the phone went off.  When PW7 asked for a pin number the accused could not provide one. He instead left it with PW7 so that he could charge it for him.  Later on the following day PW7 got information that police officers were looking for the 2^nd accused he suspected that the 2^nd accused was being sought for (sic) in connection with the phone which he had left with him the previous night. He went looking for him at Kakamega town where he was operating a bicycle taxi……………………………………………………………

The mobile phone which had been taken from PW7 the previous day was recovered.

.....The mobile phone was positively identified by the complainant in count 2.

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I find that the doctrine of recent possession is applicable in this case."

The Learned Senior Resident Magistrate in the end found the appellants guilty as charged, convicted them and sentenced them as already stated.

The findings of the learned trial magistrate became the subject of the first appeal before the High Court which considered the entire evidence and in dismissing the appeals stated as follows:-.

"According to PW3, Silvanus Ashiono, he lost his handcart on 7/2/2005. He didn't know who had stolen it.The 1^st appellant is his neighbour who lives about one kilometer from his homestead.  The same handcart was used to block the motor vehicle that was being driven by PW1. In  their evidence PW1, PW2, and PW4 testified that 1^st  appellant was one pushing the handcart .We do found that it was not a mere coincidence that a handcart was being pushed on the road at the same time robbers emerged from the side and started shooting. We note that none of the members of public testified as to how the 1^st appellant was beaten or how they connected him to the crime.  However from the evidence of PW1, PW2, PW4 and PW6 we are satisfied that the 1^st appellant was part of the gang that committed the robberies

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With regard to the 2^nd appellant, it is the evidence of PW5 that he stopped at the scene. Two robbers ran towards him and asked for the ignition key. He was robbed of his Alcatel mobile phone. This was about 5.50 pm. On the same day, the appellant went to PW7's home with the same phone. The 2^nd defendant's defence is that he was arrested on 8^th February, 2005 while on his duties.  We do find that the 2^nd appellant gave the stolen phone to PW7. This was a few hours after  the robbery. We hold that the 2^nd appellant was part of the robbers and participated in the robbery. According to PW4 he saw the 2^nd accused during the robbery. He had a hammer. From the evidence of PW1, PW2 and PW4, there were more than three robbers.  PW2's evidence is that the 2nd appellant was amongst the robbers who tried to hijack the pick-up."

The learned Judges of the High Court in the end dismissed the appellants' appeals.

Mr. Onsongo learned counsel for the 1^st appellant addressed us at length on the issues already identified above and relying on various decisions of this Court, urged us to allow his client's appeal.  Mr. Okuta also addressed us on the same issues and emphasized that the learned trial magistrate misapplied the doctrine of recent possession with respect to the 2^nd appellant. It was his view that  the evidence of Ligami should not have been relied upon.

Mr. Abele, learned Assistant Director of Public Prosecutions opposed both appeals and submitted that the grounds upon which the appellants were convicted were sound as the evidence was overwhelming against both appellants.

We have considered the record of appeal the submissions of counsel and the relevant case law.  There is no dispute that Wanga was robbed of Kshs.11,000/= and Koech was robbed of a mobile phone.  It was also clear to us from the evidence, an outline of which we have given above, that the  trial court and the  High  Court accepted that both Wanga and Koech were threatened with violence immediately before the robbery.  There was no medical evidence adduced at the trial but the attackers were more than four, so  the  offences of  robbery with  violence  under section 296 (2) were proved on the evidence. Thus the main question was only as to whether the appellants were among the attackers.

The law as to the duty of this court, indeed any court, when considering a case such as is before us which depends wholly or largely on the correctness of the identification of an accused person is settled.  The court has a duty to ensure that the evidence of identification is water-tight before basing a conviction on it.  There is a plethora of authorities on this principle including the case of Roria -Vs-  R [1967] EA 583, where the predecessor of this Court stated (as per Sir Clement De lestang V.P.), inter alia, as follows:-

"A  conviction resting entirely on identity invariably causes a degree of uneasiness, and as Lord Gerdner L.C. said recently in the  House of Lords in the course of a debate on section 4 of the Criminal  Appeal Act 1966  of the  United  Kingdom which  is designed to  widen  the  power of the  court  to  interfere  with verdicts:

"There may be a case in which identity is in question and if any innocent  people are convicted today I should think that in nine cases out of ten if there are as many as ten­ it is in a question of identity.""

Those sentiments found favour in the case of Kamau -Vs- Republic [1975] EA139 where it was stated:-

"The most honest of witnesses can be mistaken when it comes to identification"

It is therefore clear beyond peradventure that the evidence of identification needs to be examined carefully before a court can enter a conviction against an accused person. We have on numerous occasions given guidelines on the manner of handling evidence of identification particularly visual identification.  In the case of Cleophas Otieno Wamunga -Vs - Republic - [Criminal Appeal No.20 of [1989] (UR), this Court differently constituted stated inter alia, as follows:-

"Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach the evidence of visual identification was succinctly stated by Widgery C.J. in the well known case of R -Vs- Turnbull [1876] 3 ALL ER 549 at page 552 where he said:-

"Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometime made.""

In the appeal before us we have already stated that the learned Senior Resident Magistrate set out in his judgment the evidence which was placed before him.  He then analyzed and evaluated it in detail and came to the conclusion that the offences charged had been proved.  The High Court likewise set out the evidence, in outline, and in our view carefully analyzed the same afresh and came to its own independent conclusion  as it was  bound  to do in law.(see the case of Okeno -Vs- Republic [1972] EA p.32, among others.)

As the record we have set out before, in outline, shows, the two courts below reached  concurrent  findings on matters  of fact  as regards the identification  of the appellants  which  was  that  both  appellants  were  correctly  identified  as among  the attackers who robbed the complainants.   It is the law that we cannot interfere with a finding of fact unless we are satisfied that there was no evidence at all to support the same or that there was a serious misdirection which led to mis justice.  In the case of Mriungu -Vs- Republic [1983] KLR 455, we said:-

"Where  a right of appeal is confined  to questions of law, an appellate court has loyalty to accept the  findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or  mixed  findings of  fact and law and it should  not  interfere  with  the  decision  of  the  trial  or first appellate court unless it is apparent on the evidence that no reasonable tribunal could have reached that conclusion, which would be the same thing as holding that the decision is bad in law."

With  regard  to  the  1^st Appellant  in  the  case  before  us  both  courts  below accepted the evidence  of Wanga, Rioba and Salim that he was the attacker with the handcart  which  he  put  in  the  way  of  their  motor  vehicle. The two  courts  also accepted the evidence of the same witnesses that the 1^st appellant was attacked at the scene by members of the public.  The evidence of the 1^st  appellant being found at the scene  was  buttressed  by  the  testimony  of  PC Amboko  whose  evidence  was  also accepted by both courts below.  In those premises we do not think anything should turn on whether the 1^st appellant was rescued by PC Amboko or APs of Shinyalu DO's office or on whether the 1st appellant pushed or pulled the handcart or threw it in the way of the canter.   The offence took place at about 6.00 p.m. and no one alleged that it was dark.  The two courts below accepted that it was still day time and it was not dark.

With respect to the 2^nd appellant, the trial court accepted the testimony of Koech that he identified him at the scene as one of the attackers who ordered him out of his motor vehicle.   The trial court also accepted the evidence that the 2nd appellant  was  found  in  possession  of  Koech's  Alcatel  mobile  phone  the  same evening after the robbery which evidence was buttressed by that of Ligami.  Once again the evidence of recent possession of the Alcatel mobile phone was accepted by the High Court.

It is therefore clear that the two courts below had before them not just visual identification of each appellant but the arrest at the scene with respect to the  1^st appellant  and  possession  of  recently  stolen  property  with  respect  to  the  2^nd appellant.

In the premises we are unable to agree with M/s Onsongo and Okuta learned counsel for the appellants that the evidence of identification was not positive. In those premises the appellants'  appeal  challenging their conviction  on account of Improper or mistaken identification cannot be sustained.    Our analysis further demonstrates  that  the  High  Court  did  actually  analyze  and  consider  the evidence against  each appellant  and  came  to  the  conclusion  that  the  appellants'  respective appeals  challenging  their  identification were  baseless.    In our view the  ground alleging failure of the High Court to re- valuate the evidence is clearly untenable.

The other issue raised before us by the appellants was that the Senior Resident Magistrate and the High Court did not consider that the appellants especially the  2^nd appellant was convicted on inadmissible evidence.  This ground was raised because, according  to counsel  for  the 2^nd   appellant,  the 2^nd appellant  was  arrested  and  the recovery of the Alcatel mobile phone was made on the basis of information extracted from  the 1st appellant  by PC Amboko.   Our recent decision in the case of Rafael Isolo Echakara &  Another -Vs- Republic [Criminal Appeal  No.44 of 2003] (UR) was invoked  in support  of that submission.   We are however of the view that that decision is clearly distinguishable from this appeal.  We are of that view because in the Echakara case what amounted to a clear confession by one accused led to the arrest of his co-accused and the recovery of allegedly stolen property.  We held that that evidence was inadmissible in law having been extracted by a Senior  Sergent who had no capacity to receive the accused's confession.

In the appeal before us, the record of the trial court speaks for itself.   On that aspect of the evidence of PC Amboko, the trial court stated:

"Besides this his arrest was facilitated by the 1^st accused who is said to have mentioned him though this evidence is not itself admissible."

So, the learned Senior Resident Magistrate  was alive to the indmissibility  of the information the 1^st appellant gave to PC Amboko.   The High Court on its part did not consider that aspect of the evidence in its judgment.   Our own analysis  of the evidence  shows  however  that  the  2^nd   appellant  was  not  convicted  solely  on  the evidence of PC Amboko.  There was also the evidence of Koech and Ligami which independently was relied upon to convict the 2^nd appellant.  In the end in our view the ground of appeal challenging the conviction of the appellants on account of reliance upon inadmissible evidence cannot also be sustained.

Counsel for the 2^nd appellant  vigorously  submitted  that the 2^nd appellant was not found in possession of the mobile phone stolen from Koech and further that if the evidence of alleged possession of recently stolen mobile phone was removed, the identification of the 2^nd  appellant by Koech and Ligami   would   remain   dock identification   which  was  worthless  without  an  earlier  identification parade.     In making  that submission,  counsel  for the 2nd appellant  was  restating  a time  tested principle enunciated  in several decisions of this Court including that of  Kiarie –Vs Republic [1984] KLR 740.  On that submission the learned trial magistrate stated:-

"I have no doubt in the evidence of PW7 as to how the 2^nd accused brought the phone to him.   There was no evidence to suggest any bad blood between the 2^nd   accused and PW7.   The 2^nd accused denied the evidence of PW7 in passing. The 2^nd accused was found to have taken a stolen phone to PW7. This was a very recent stolen property recovered. In the circumstances the 2^nd accused was under obligation to explain the circumstances under which  he obtained the mobile phone. He did not do so.   The law is clear that where it [is] shown that an  accused  was  in  possession  or  handled  a  recendy  stolen property he is under  obligation  to explain  how  he came by it otherwise if he  does not do so,. it will lead to an inescapable conclusion.  (sic)  That he is a thief or robber.  See the case of Mwachanje  & 2  others  -Vs-  Republic  KLR  2002 vol. 2  page 341."

So, the learned trial magistrate accepted, as true, the evidence of Ligami that the 2^nd  appellant gave him the  subject mobile phone first to unlock it and secondly to charge the same for him.  The learned trial magistrate explained why he believed the evidence of Ligami. The 2^nd appellant did not allege any bad blood between him and Ligami.  His cross examination of Ligami did not suggest such a notion nor did he raise such a defence in his sworn statement.  He did not say why he thought Ligami had framed him.

In our view in the circumstances of this appeal, the learned trial magistrate was entitled to accept the evidence of Ligami and his appreciation of the doctrine of recent possession cannot be faulted.  It is plain therefore that the 2^nd appellant's dock identification by Koech and Salim was buttressed by the finding of Koech's recently stolen mobile phone with him. The failure to mount an identification parade did, not in the circumstances vitiate the 2^nd appellant's identification.  We therefore reject the 2^nd appellant's contention that the learned trial magistrate improperly applied the doctrine of recent possession.

In a related argument, counsel for the 2^nd appellant submitted that the learned trial magistrate shifted the burden of proof to the 2^nd appellant.  In  our view that submission is, with respect, without merit. When the learned trial magistrate stated in his judgment that the 2^nd appellant had not explained how he had come into possession of the stolen mobile phone, he was merely restating a settled principle that once the prosecution had demonstrated beyond reasonable doubt that the 2^nd appellant was found in possession of a recently stolen mobile phone, the onus shifted to him to explain how he had come to possess the mobile phone.   Such onus was however not to be discharged beyond reasonable doubt.  In the case of Hassan -Vs-. Republic [2005]2 KLR 11, this Court differently constituted, stated:-

"Where an accused person is  found in  possession of recently stolen property in the absence of any reasonable explanation to account for this possession,  a presumption of fact arises that he is either the thief or receiver."

In the appeal before us the 2^nd appellant gave no explanation of any kind and the learned trial magistrate was perfectly entitled to take into account the want of explanation in determining the issue of possession of recently stolen property.

The last issue which was raised was that the case against both appellants was not proved beyond reasonable doubt.   Our above analysis demonstrates that that cluster of grounds cannot also be sustained.  Heavy weather was made of the finding by the ballistics expert, Langat, that some cartridges recovered at the scene could not have been fired using the firearm which was produced at the trial.   Various discrepancies were also pointed out by counsel for the appellants.  We have already stated that we have concurrent findings of fact by the two courts below on those alleged discrepancies and we cannot interfere unless we are satisfied that there was serious misdirection which led to injustice.   We have found no such misdirection.The  finding  by  Langat  that  the  recovered  cartridges  could  not  be  fired  by  the recovered  firearm  was,  in  our  view,  insignificant  given  that  both  courts  below accepted  that  a  firearm  capable  of  being  fired  and  containing  live  ammunition capable  of being  fired, proved  beyond  reasonable doubt  that  the attackers  were armed with dangerous weapons.  With regard to conflict of evidence we have come to the conclusion that the same was not serious as, notwithstanding the same, the case presented by the prosecution remained water-tight.

Our conclusion on the appeals against conviction for the offences of robbery with violence determines the appeals against the convictions on the counts of being in possession of firearm and ammunition respectively. We find no merit in the -same.

The upshot of all the above is that these appeals cannot succeed.  We agree with Mr. Abele that both appellants were properly convicted as charged.

The appeals are accordingly dismissed.

Dated and Delivered at Busia this 9^th day of May, 2014.

J.W. ONYANGO OTIENO

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JUDGE OF APPEAL

F. AZANGALALA

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR