Elements of the offence of robbery of violence
17.The offence of robbery with violence is contained in Sections 295 of the Penal Code provides as follows;Section 296(2) of the Penal Code provides as follows;
20.From the evidence of the prosecution witnesses, it is a fact that on February 2, 2013, the complainant (PW 1), was robbed of her properties. The said robbery incidence was witnessed by her cousin’s wife (PW 4) and a minor who lived with her, one Mwanzi (PW 5). In the cause of the robbery, the robbers used actual violence against the complainant and PW 5. The robbers were also said to have been armed with offensive weapons i.e axes and pangas. It is therefore safe to find that the elements of the offence of robbery with violence were met.
21.It was now the duty of the prosecution to put the appellants into the scene of crime. On identification of the robbers, the complainant stated as follows;
22.The complainant testified that she did not tell anyone that she had recognized the 1st accused, now the 1st appellant. She was said to later identify the 1st appellant at the police station after they were arrested. The evidence of the complaint was the only one that identified the 1st appellant at the scene of crime. Catherine (PW 4) in her evidence in chief said there was no light at the time. She did not know the robbers since they wore black masks. However, on cross examination, she said that it was the 1st appellant who took the money and scratch cards from her.
23.Mwanzia (PW 5) said that he did not see the robbers, but he said he saw the 2nd appellant since he was the short one. However, his evidence on identification as conflicting. He stated as hereunder;
24.Further on identification, the arresting officers PW 8 and PW 9 testified that they received information from an informer about the robbers who had boarded a vehicle. They said they were given the description of the robbers by the informer. Nothing more is said of the informer or what description he gave of the robbers. The investigating officer did not shed more light on this. No identification parade was carried out.
26.From the above, it is my considered view that the issues of identification and placing the appellants to the scene of crime is significant as this would link the appellants with the commission of the crime. The identification of the appellants at the scene of crime and the evidence of identification that led the arresting officers to identify the appellants is in doubt. With no sufficient evidence placing the appellants at the scene of crime, the charges of robbery with violence therefore cannot stand.
27.The appellants were also charged with an alternative charge of handling stolen properties. the question is whether the appellant is guilty of the offence of handling stolen property contrary to section 322 of the Penal Code.Section 322 which defines the offence of handling stolen property as follows:(1)'A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.(2)A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.
28.The issue is whether the ingredients of the offence were met. In the case of Tembere v Republic (1990) eKLR, the said ingredients were summarized as follows: -
29.From the evidence of the arresting officers, Ephantus PW8 said that a black bag was recovered from the 1st appellant. Nothing was recovered from the 2nd appellant. Ogutu PW9 said that ‘one had a black mask, catapult and credit for phone’. however, from the cross examination by the 2nd appellant, he said that he was found with nothing. One can therefore deduce that the items were recovered from the 1st appellant. The I.O, PW 7 said that a few items including scratch cards were recovered. The witness did not specify from whom the items were recovered from. The complainant said the scratch cards were in the bag that was recovered from the appellants.
30.In order to proof the offence of handling stolen goods, it must be shown that the appellant had possession of the stolen items, and that he must have known or believed that the good were stolen. The evidence on possession of the recovered items was quite casual as witnessed in the above paragraph. The recovery of the items from the appellants having been in doubt, the issue of now handling stolen goods cannot arise. I find that also in the alternative charge, the prosecution failed to proof their case beyond reasonable doubt.
31.I find that through the evidence on record, it was not safe to convict the appellants on the main charge of robbery with violence. The evidence on record is also not sufficient to support the alternative charge of handling stolen goods. For these reasons, I allow the appeal, quash the conviction and set aside the sentence. The appellants be set free and they be released from custody unless lawfully held.