REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI

CRIMINAL CASE NO. 829 OF 2019

(Submissions of No Case to Answer in respect of Criminal Case No. 829 of

2019 in the Chief Magistrate’s Court at Milimani before B. Ochoi, SPM).

JACKSON KIHARA GACHUCHA.................................................ACCUSED PERSON

VERSUS

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

ACCUSED PERSON’S WRITTEN SUBMISSION OF NO CASE TO ANSWER

Authorities cited

1. DIRECTOR OF PUBLIC PROSECUTIONS VS. MARIAS PAKINE TENKEWA

T/A NARESHO BAR RESTAURANT (2017) eKLR
2. JOSEPH NJARAMBA KARURA VS REPUBLIC (1982-88) KAR 1165
3. JASON AKUMU YONGO V REPUBLIC [1983] eKLR
4. JOEL KAMUGA AND ANOTHER VS REPUBLIC (1989) NO. 342
5. STATE OF UGANDA V WAGARA (1964) E. A. 366, AT 368
6. FURO V UGANDA 1967 E. A. 632
7. WAITHAKA CHEGE – V- R {1979} KLR 271
8. ABDALLA BIN WENDO & ANOTHER – V- R {195} 20 EACA 166;
9. WAMUNGA – V- R {1989} KLR 424
10. MAITANYI – V- R 1986 KLR 198)
11. GABRIEL KAMAU NJOROGE – V- R (1982-88) KAR
12. OUMA – V- R, CRIMINAL APPEAL NO, 91 OF 1985
13. THOMAS OLUOCH OKUMU v REPUBLIC, NAIROBI HIGH COURT CRIMINAL
APPEAL NO. 589 OF 2001
14. AKUMU VS REPUBLIC (1954) 21 EACA
15. JARIBU ABDALLAH VS. CRIMINAL APPEAL NO. 220 OF 1994
16. JOHN NJAGI KADOGO & 2 OTHERS v REPUBLIC [2006] eKLR
17. AMOLO VS REPUBLIC (1990-1994) EA 22
18. JAMES TINEGA OMWENGA V REPUBLIC [2014] eKLR
19. PETER GATIKU KARIUKI V REPUBLIC [2014] eKLR
20. JOHN NDUATI NGURE V REPUBLIC [2016] eKLR
21. BOGERE MOSES AND ANO. VS UGANDA SC CR/APP NO. I OF 1997
22. IDRIS MUKTAR & 20 OTHERS V. COUNTY GOVERNMENT OF GARISSA & 7
OTHERS [2016] eKLR
23. MALINGI V REPUBLIC [1989] KLR 225
24. ABANGA ALIAS ONYANGO V REPUBLIC, CR. APP. NO 32 OF 1990
25. SAWE V. REPUBLIC [2003] eKLR
26. MARY WANJIKU GICHIRA V. REPUBLIC, CR. APP. NO 17 OF 1998
27. KARUKENYA & 4 OTHERS V. REPUBLIC [1987] KLR 458
28. GIDRAPH THUO NDOLA VS REPUBLIC CA 12 &13 OF 2000 (NYR)
29. NDUNGU KIMANYI VS. REPUBLIC (1979) KLR 282
30. WOOLMINGTON V DPP (1935) AC 485
31. J.O.O V REPUBLIC (2015) eKLR
32. R. V. GAGNON (L.), 2006 SCC 17, [2006] 1 S.C.R. 621
33. R. V. J.P., 2014 NSCA 29,
34. MBUGUA KARIUKI VS R (1979) KLR

A. Introduction

(1) This is the A Accused person’s humble Written Submissions of No Case

to answer within the meaning of Section 210 of the Criminal Procedure
Code. The matter is before Hon. Bernard Ochoi, SPM, sitting at the Chief
Magistrate’s Court at Milimani.

B. Brief Facts

(2) The A Accused person was charged with offence of Robbery with
Violence contrary to Section 296(2) of the Penal Code Cap 63-Laws of
Kenya. The particulars of the offence were that on the night of 27th day of
April, 2015 at Kobil Petrol Station along Langata Road in Nairobi within
 Nairobi County, jointly with another not before court, being armed with
dangerous weapons namely wire, robbed DAVID GITARI KINYUNJURI of
a motor vehicle Registration Number KBS 338M Toyota Axio Saloon
valued at Kshs. 650,000/- and at the time of such robbery used actual
violence to the said DAVID GITARI KINYUNJURI.

(3) The Prosecution brought forward 5 witnesses who testified against the
Accused person but the identifying witness stated that the Accused
person was identified by his physical appearance and a black jacket.

(4) The Prosecution also alleged that the Accused person was found with
the stolen motor vehicle.

(5) That on 08/01/2020 the Prosecution closed its case. The Accused
person’s prayer to submit that he had no case to answer before the trial
court’s Ruling was granted.

C. ISSUES FOR DETERMINATION IN THE SUBMISSION

(6) Your Honour, flowing from the case before you and the background
described above, the Accused believes that the issues for determination
can be delineated as follows:-

a. THAT, the Prosecution exceeded its mandate and acted ultravires by

unlawfully releasing an exhibit (Motor Vehicle) that was never
ascertained by the court to be existing and which had not been
produced before court as required by law.

b. THAT, the charge was defective, for being framed contrary to Sections
134, 137(a) and 214(1) of the Criminal Procedure Code (Cap. 75, Laws
of Kenya);

c. THAT, the Prosecution did not prove to the required standards that
the prevailing conditions at the time were conducive for positive
identification of the Accused person;

d. THAT, the trial court is urged to hold that there are contradictions in
the Prosecution in this case due to credibility by the Prosecution
witnesses;

e. THAT, the testimonies tendered to establish the Accused’s mode of

arrest were riddled with doubts and was not enough to sustain a
conviction;
 f. THAT, the trial court ought not to rely on the “doctrine of recent
possession” to dismiss the Accused’s Submission when the evidence
on this issue is conflicting, contradictory and unsatisfactory;

g. THAT, the Accused person prays the Hon. learned trial Magistrate to
note that the burden and standard of proof by the Prosecution was
not discharged and thus the Prosecution case was not proved beyond
reasonable doubt as provided for under the law, thus a guilty verdict
is unsafe and cannot be supported having regard to the evidence and
that on any ground it would be a miscarriage of justice.

D. LAW APPLICABLE AND ARGUMENTS IN SUPPORT OF THE GROUNDS OF

THIS SUBMISSION

 THAT THE ALLEGEDLY STOLEN MOTOR VEHICLE WAS NOT FORMALLY

PRODUCED IN COURT-(A FATAL FAILURE BY THE PROSECUTION)

(10) It was the Prosecution evidence that a motor vehicle (KBS 338M) was
recovered in the course of the investigations. This important exhibit
was neither seen nor produced as an exhibit. Instead, its photographs
were tendered in evidence.

(11) The bone of contention in this particular ground is the fact that the main
exhibit herein (the motor vehicle) was not brought to the court for
scrutiny by the court and of course by the Accused person.

(12) It is humbly submitted that the Prosecution erred by insisting that this
Hon. Court rely on the photographs of the subject motor vehicle without
seeing the motor vehicle for its the benefit and that of the Accused
person; and that such failure to produce the exhibit would render the
Prosecution evidence valueless.

(13) The decision in DIRECTOR OF PUBLIC PROSECUTIONS VS. MARIAS

PAKINE TENKEWA T/A NARESHO BAR RESTAURANT (2017) eKLR , in
the High Court of Kajiado, declaring failure to produce in court an
exhibit (and instead produce photographs) as untenable in a criminal
case, as is evident in the case facing the Accused person.

(14) The learned Judge in the foregoing judicial authority itemized the
sequence of introducing exhibits thus:-

“The standard procedure of introducing exhibits takes the following

sequence:
 Step 1: The Prosecution counsel has to have the exhibits marked in the
form of numbers or letters i.e. 1, 2, 3, or A, B, C.

Step 2: The exhibits is then shown to the accused and the defence
Counsel.

Step 3: The Prosecutor, then approaches the witness for identification.

Step 4: Lays the foundation for the exhibits in the particular hearing and
relevance.

Step 5: The Prosecutor moves the court for admission of the exhibit in
evidence.

Step 6: The exhibit is then given a unique number or letter to formalize

its introduction in the case against the accused…….

(15) The Hon. Court in the foregoing case continued thus:-

“The case before the trial court depended on the physical evidence.
Generally, tangible/or documentary evidence need to be presented by the
witness who has the knowledge of its existence i.e. the seizure, recovery,
or the one who prepared the inventory report. That is how it must be
identified by a label or mark as sufficiently reserved in the witness
statement supplied to the accused and the defence counsel.

There is no dispute that the preservation and safety of exhibits in any

trial is an integral part of securing justice and fair play. To this end from
the time of seizure to the moment the exhibit is required to be presented
in court there is an obligation to all parties to the case to prevent an
abuse of the process.
One such way would be to avoid an interference with the exhibits in a
manner which may occasion prejudice or mistrial of the case.

This is grounded on the basic principle of best evidence for the

Prosecution counsel to prove that the exhibit before the court is the
same exhibit that was referred to by the witness in his or her statement.
In establishing this chain of evidence each witness in a criminal trial
handling an exhibit must write a brief statement identifying the exhibit,
its whereabouts, station, when and how they received it and who they
seized from and what is the relevance of it against the charge before
court. It is neither feasible nor practicable to appreciate that from the
record of the trial court where the allegations in the charge sheet
constitute existence of some exhibits it’s only fair and just that the
 evidence collected be made available to the accused before any order of
their release is made. This will be conformity with constitutional
provisions on the right to discovery.

In general the Prosecution owed the parties to a trial a duty of care to

explain why the exhibits were to be released before admitted in
evidence…….”

Why tamper with this evidence by releasing it and have the case
prosecuted by way of production of photographs? The release was
premature in absence of them not being marked, identified and admitted
in evidence.
The interest of the Accused person ought to have been considered
before any acceptance of the evidence in respect of the exhibit (the
motor vehicle).

Finally, this Hon. Court is urged to find that the the trial Magistrate erred
in failing to sufficiently appreciate that it was not open to him to rely
upon evidence of robbery with violence contrary to Section 296(2) of the
Penal Code when the subject motor vehicle had not been formally
produced in Court……..

(16) Section 322(3) of the Penal Code states in the relevant part:

(b) “No goods shall be regarded as having continued to be stolen goods

after they have been restored to the person from whom they were stolen
or to other lawful possession or custody, or after that person and any
other person claiming through him have otherwise ceased as regards
those goods to have any right to restitution in respect of the stealing.”

(17) The Prosecution had made an application to recall the victim (PW 3) to
identify the photographs of the allegedly stolen car; an application
which was allowed by the court. However, the witness was not recalled
and consequently the photographs remained unidentified.

(18) In the case of JOSEPH NJARAMBA KARURA VS REPUBLIC (1982-88)

KAR 1165 it was held:-

“Where there is no identification in Court for a key exhibit, such an

exhibit remained unidentified and that destroys the judgment”

B. THAT THE CHARGE SHEET WAS DEFECTIVE

(14) Kindly refer to the first report made at Thika Police Station
 “O.B. No. 5 of 28/4/2015 at 0.100 hours.

CARJACKING REPORT

“To the Station now is one by the name DAVID GITARI KINYUNJURI
ID/No. 22136267 and mobile phone number 0724902610 who now submits
a report that yesterday on 27th April 2015 at around 22.00 hours while at
parking within Carnivore Kobil Petrol Station in Nairobi with taxi TOYOTA
CROWN WHITE IN COLOUR of Registration No. KBS 338M, two men
approached him and asked for his service to take them to Tangaza
College within Carren in Nairobi. He then drove them up to that area and
upon reaching the roundabout to drop them they strangled him with a
rope from the back and tied him with driver’s seat and instructed him not
to make any sound otherwise they kill him. He reports that the men were
armed with pistols and a panga. He then adds that they stopped him and
one of them alighted from the vehicle and switched off the m/vehicle.
They tied him the hands and on the mouth and drove the m/vehicle up to
where he was dropped at Kiboko area within Thika Sub- County. He is
seeking for Police assistance. Vehicle circulated to the Stations under
area of command and awaiting further Police action….”

(15) The make of the allegedly stolen motor vehicle is given as TOYOTA
CROWN in the first report made to the Police by the victim (PW 3) at the
Thika Police Station. However, in court, the make of the said vehicle
changed to TOYOTA AXIO. This is a completely different vehicle. The
most devastating piece of the Prosecution case is the fact that the
allegedly stolen vehicle was not produced as an exhibit in court. It is the
law that such failure is fatal to the whole case.

(16) In essence the foregoing shows that the Charge Sheet was fatally
defective as it was at variance with the evidence adduced.

(17) A member of staff from the Registrar of Motor Vehicles ought to have
been called to guide the court accordingly in regard to these
registrations. A Copy of Records should have been produced by the
said Registration Office but instead it was produced by the I.O.
contrary to the provisions of Section 77 of the Evidence Act.

(18) In spite of the glaring and substantial inconsistencies between the

particulars alleged and those established, and without the charge
having been amended to substitute the particulars alleged therein,
 with what had been established in evidence, the Prosecution is
persuading this Hon. Court to convict the Accused person on this
fatally defective charge. It is the Accused person’s prayer that this
Hon. Court finds and holds that this case was not proved beyond
reasonable doubt.

(19) In this regard, it is pertinent to draw attention to the following

provisions of Section 134 of the Criminal Procedure Code which
makes particulars of a charge an integral part of the charge:

"Every charge or information shall contain, and shall be sufficient if it

contain, and shall be sufficient if it contains a statement of the specific
offence or offences with which the accused person is charged, together
with such particulars as may be necessary for giving reasonable
information as to the nature of the offence".

(20) In the case of JASON AKUMU YONGO V REPUBLIC [1983] eKLR, the
Court of Appeal stated:-

“In England it has been said:

An indictment is defective not only when it is bad on the face of it, but
also:-

 When it does not accord with the evidence before the committing
Magistrates either because of inaccuracies or deficiencies in the
indictment or because the indictment charges offences not disclosed in
that evidence or fails to charge an offence which is disclosed therein,
 When for such reasons it does not accord with the evidence given at
the trial.”

See Archbold, Criminal pleading Evidence and Practice (40th Edn) p 52.
In our opinion a charge is defective under Section 214(1) of the Criminal
procedure Code where:

(a) It does not accord with the evidence in committal proceedings because
of inaccuracies or deficiencies in the charge or because it charges
offences in the charge not disclosed in such evidence or fails to charge
an offence which the evidence in the committal proceedings discloses;
or

(b) It does not, for such reasons, accord with the evidence given at the
trial; or
 (c) It gives a misdescription of the alleged offence in its particulars.

They further stated:-

“In so far as the charge did not accord with the evidence given at the
trial because of the misdescription in the particulars, the original
charge was defective within the meaning of Section 214 of the Criminal
Procedure Code.”

(21) In the case of JOEL KAMUGA AND ANOTHER VS REPUBLIC (1989)

NO. 342 it was held:-

“Therefore it remains as a fact that the charge held before the court was
at variance with the evidence adduced and therefore defective. The
conviction of the Accused person ought to be quashed.”

(22) In the case of STATE OF UGANDA V WAGARA (1964) E. A. 366, at 368,

Udo Udoma, Chief Justice of Uganda, commenting on the fact that the
evidence led at the trial disclosed particulars other than those alleged
in the charge stated:-

"In the absence of any amendment, the Prosecution is bound by the

particulars in the charge."

(23) In the case of FURO V UGANDA 1967 E. A. 632, the same Chief Justice
when dealing with the issue whether the trial Magistrate could rely on
the facts established at the trial which were different from the
particulars alleged in the charge, observed with conviction as follows:
"The above passage of the learned trial Magistrate's judgment is
misdirection in law, because that was not the case put before him by the
Prosecution. The Magistrate was not entitled to make a new case other
than the case put before him by the Prosecution; because an accused
person is entitled to be told in the charge what case he has to meet.”

C. THAT THE IDENTIFICATION EVIDENCE WAS INSUFFIENT TO BASE A

CONVICTION UPON

(24) It is to be noted that the crime was committed at night and conditions
for positive Identification or recognition can be difficult. Evidence of
visual identification should always be approached with great care and
caution (see: WAITHAKA CHEGE – V- R {1979} KLR 271). Greater care
should be exercised where the conditions for a favourable identification
are poor. (GIKONYO KARUME & ANOTHER – V – R {1900} KLR 23).
 Before a Court can return a conviction based on identification of any
accused person at night and in difficult circumstances, such evidence
must be water tight. (See: ABDALLA BIN WENDO & ANOTHER – V- R
{195} 20 EACA 166; WAMUNGA – V- R {1989} KLR 424 ; and MAITANYI –
V- R 1986 KLR 198). Before acting on such evidence, the trial Court
must make inquiries as to the presence and nature of light, the intensity
of such light, the location of the source of light in relation to the accused
and time taken by the witness to observe the accused so as to be able to
identify him subsequently.
The Accused person cites various authorities in support of his
submission. The case of GABRIEL KAMAU NJOROGE – V- R (1982-88)
KAR is cited to support the submission that the Appellant is entitled as
a matter of law to have the evidence against them re-assessed and re-
evaluated by the High Court. The Accused person cites the case of
OUMA – V- R, CRIMINAL APPEAL NO, 91 OF 1985 in support of the
submission that at the time of evaluating the Prosecution’s evidence,
the Court must have in mind the accused person’s defence and must
satisfy itself that the Prosecution had by its evidence left no reasonable
possibility of that defence being true.

(25) The 1st report to the Police by the Complainant (PW 3) was read to the
trial court. It was produced as an exhibit. The relevant part reads:-

“O.B. No. 5 of 28/4/2015 at 0.100 hours.

CARJACKING REPORT

To the Station now is one by the name DAVID GITARI KINYUNJURI ID/No.
22136267 and mobile phone number 0724902610 who now submits a
report that yesterday on 27th April 2015 at around 22.00 hours while at
parking within Carnivore Kobil Petrol Station in Nairobi with taxi
TOYOTA CROWN WHITE IN COLOUR of Registration No. KBS 338M, two
men approached him and asked for his service to take them to Tangaza
College within Carren in Nairobi. He then drove them up to that area
and upon reaching the roundabout to drop them they strangled him with
a rope from the back and tied him with driver’s seat and instructed him
not to make any sound otherwise they kill him. He reports that the men
were armed with pistols and a panga. He then adds that they stopped
him and one of them alighted from the vehicle and switched off the
m/vehicle. They tied him the hands and on the mouth and drove the
m/vehicle up to where he was dropped at Kiboko area within Thika Sub-
County. He is seeking for Police assistance. Vehicle circulated to the
Stations under area of command and awaiting further Police action….”
 (26) The Complainant (PW 3), in his evidence-in-chief told the trial court he
was approached one person who wanted his taxi services; and that the
said customer wanted to be driven to Tangaza in Karen area. It was at
Tangaza (or was it Langat, as recorded?), that they were joined by
another person. That once the second person joined them, the two
customers turned assailants strangled the victim using a wire (or was it
a rope?). From there, PW 3 was unable to tell where they were going
until he was dropped somewhere in Thika.

(27) There are notable inconsistencies in what PW 3 told the Police and what
he said in the trial court:-

 In court, PW 3 says he approached by only one person (not two people)

at the Kobil Petrol Station; he drove with this one person to Tangaza
area where they found the second person.

 In court, once again, PW 3 says that the Accused person herein was
wearing a “brown jacket-indeed, it was this particular that he
recognized as the one the Accused person wore on the fateful night
when he picked on the Identification Parade……”

In the 1st report to the Police, the said jacket was not mentioned.

 In the 1st report, PW 3 says that his assailants were armed with pistols
and a panga.
However, in court he did not mention any other weapon save for the
wire. In fact the pistols and the panga are not mentioned in the Charge
Sheet.

Indeed, the said wire is not even mentioned in the 1st report; instead,
PW 3 there says, he was strangled with a rope.

 In the 1st report, PW 3 states that the car he was robbed of is a TOYOTA
CROWN, white in colour. However, the car in the Police photos is GREY
IN COLOUR. Again, it is said to be a TOYOTA AXIO.
The two makes are completely different.

(28) In support of his argument that the inconsistencies are material and
that they are fatal to the Prosecution case, the Accused person cites the
decision of A.G.A. Etyang, J in THOMAS OLUOCH OKUMU v REPUBLIC,
NAIROBI HIGH COURT CRIMINAL APPEAL NO. 589 OF 2001 where the
learned Judge after observing that the complainant had given two
different accounts of what took place stated that:-
 “In my considered view, however, both these accounts cannot be correct
at the same time. A doubt was thus created by the complainant’s own
testimony in court, which doubt ought to have been given to the Accused
person. Unfortunately the trial Magistrate believed the second account
without giving sufficient reasons. In my view the trial Magistrate was duly
bound to reject both accounts as untenable. The conviction of the
applicant based on that evidence was therefore unsafe.”

(29) The fact of the matter is that the particulars of the charge are at variance
with the evidence tendered in court.

(30) It is now trite law that when visual identification of an accused person is
made by a witness in difficult conditions like at night, such evidence
should not ordinarily be acted upon to convict the accused in absence
of other evidence to corroborate it.

The rationale for this is that a witness may be honest and prepared to tell
the truth but he might as well be mistaken.

(31) In the case of AKUMU VS REPUBLIC (1954) 21 EACA , the Court of

Appeal for Eastern Africa held:-

“Evidence of first report often proves a good test of which the truth and
accuracy of subsequent statement may be gauged and provides a
safeguard against later embellishment or deliberately made up case.
Truthfulness will be out in the first statement from a witness at a time
when recollection is very fresh and there has been no opportunity for
consultation with others.”

(32) It is to be noted that the first report by the Prosecution witnesses did not
either contain this Accused person’s name or his descriptions. It does not
also reveal the manner of dressing of any of their assailants .

(33) The Accused person is of the view that the Identification Parade
conducted by the Prosecution was of little probative value. This is
because the victim had not given prior descriptions of his assailants that
would have enabled the Prosecution to mount such parade.

(34) In the Tanzanian case of JARIBU ABDALLAH VS. CRIMINAL APPEAL

NO. 220 OF 1994 (unreported) the Court of Appeal Court stated: -
 “In matters of identification, it is not enough merely to look at factors
favouring accurate identification, equally important is the credibility of
the witness. The conditions for identification might appear ideal but that
is not guarantee against untruthful evidence. The ability of the witness to
name the offender at the earliest possible moment is in our view
reassuring though not a decisive factor.”

(35) During the Identification Parade, the Accused was placed among 7
members instead of a minimum of 8 as provided in Chapter 46 of the
Force Standing Orders. Further, the members of the parade were not
similar according to the identifying witness (PW 3). The accused person
had already been taken to court before the parade was conducted; one
month after he was arrested.

(36) In the case of JOHN NJAGI KADOGO & 2 OTHERS v REPUBLIC [2006]
eKLR, the court stated:-

“In the absence of a first report to the Police by these witnesses giving a
description of the Accused person, their subsequent identification of the
Accused person on an identification parade cannot be said to be
foolproof. It is trite law that an identification parade can only be said to
have been properly conducted where a witness had given a description of
the attackers to the Police in the first report and then his alleged
identification is tested by the subsequent identification parade. Failure to
observe the foregoing renders any subsequent identification to be dock
identification that adds little value to the Prosecution case. In the case of
KAMAU NJOROGE –VS REPUBLIC (1982 – 88) KLR 1134, the Court of
Appeal held

“……….Dock identification is worthless unless preceded by a properly

conducted identification parade. The complainant should also be asked
to give description of the suspect, and Police should arrange for a fair
identification parade………”

(37) The Court of Appeal in the case of AMOLO VS REPUBLIC (1990-1994)

EA 22-held:-

“In the earlier case of GABRIEL NJOROGE VS REPUBLIC (1987) 1

KAR 1134, PLATT, JA, delivering the Judgment of the Court, said that
the evidence of identification cannot, as it should, be tested with the
greatest care, unless the witness or witnesses had given a description
of the accused in advance, and his or their ability to identify was
tested on a properly conducted identification parade. The reason for
 the courts’ reluctance to accept dock identification is part of the wider
concept, or principle, of law that it is not permissible for a party to
suggest answers to his own witness. Taking this stage further, the
reason for the rule against leading a witness is that to do so would
clearly detract from the veracity of the evidence given and reduce its
value. For it is manifest that in all Criminal Cases, save perhaps a few
company, bye-law or minor traffic Prosecutions, the accused person
stands in the dock of the court. Consequently, it is self-evident to the
witness that the person standing in the dock is the one whom the
Prosecution desires to be identified. If, however, the procedure
outlined in NJOROGE’S CASE (SUPRA) is followed, that danger is
eliminated, or at least, much reduced ….”

(38) In the case of JAMES TINEGA OMWENGA V REPUBLIC [2014] eKLR,

the Court of Appeal stated:-

“The law is settled, that in general, identification of a suspect who was

a stranger at the time the offence was committed, which was not
followed by the witness describing the suspect to the Police who would
organize a properly conducted identification parade at which the
witness is afforded an opportunity to affirm his identification by pointing
out the suspect is dock identification which in some cases is regarded
as worthless.”

(39) In the case of PETER GATIKU KARIUKI V REPUBLIC [2014] eKLR, the
Court of Appeal stated:-

“Notwithstanding the foregoing, the Court of Appeal in MUIRURI & 2

OTHERS, – V- R [2002] KLR 274, 277 at paragraphs 25-35 stated that not
all dock identification is worthless. However, for a court to accept dock
identification, it should be of exceptional quality.

(40) In the case of JOHN NDUATI NGURE V REPUBLIC [2016] eKLR, the
Court of Appeal stated:-

“In our view, the Muiruri case did not overrule the rationale for
exercising caution when dealing with dock identification evidence. The
bottom line in the authorities is that the court will only base a
conviction on such evidence......
 …if satisfied that on the facts and circumstances of the case, the
evidence must be true and if prior thereto the court duly warns itself of
the possible danger of mistaken identification.”

(41) In BOGERE MOSES AND ANO. VS UGANDA SC CR/APP NO. I OF 1997,

the Supreme Court of Uganda stated:-

“The passage cited earlier in this judgment shows that the learned trial
judge held the defences of alibi to be unsustainable because, “through
the evidence of the 4 eye-witnesses the accused had been put at the
scene of crime. “What then amounts to putting an accused person at the
scene of crime? We think that the expression must mean proof to the
required standard that the accused was at the scene of crime at the
material time. To hold that such proof has been achieved, the Court must
not base itself on the isolated evaluation of the Prosecution evidence
alone but must base itself upon the evaluation of the evidence as a
whole. Where the Prosecution adduces, evidence showing that the
accused person was at the scene of crime, and the defence not only
denies it but also adduces evidence showing that the accused person
was elsewhere at the material time, it is incumbent on the Court to
evaluate both versions judicially give reasons why one and not the other
version is accepted. It is a misdirection to accept the one version and
then hold that because of that acceptance per se the other version is
unsustainable. In the instance case, we have found it very difficult to
avoid the conclusion that the learned trial judge considered and
accepted the Prosecution evidence alone, and then rejected the defence
summarily simply because he had accepted the Prosecution evidence.
That was in our view a misdirection. Accordingly we hold, with due
respect that the Court of Appeal erred in law upholding the depth of the
statement which had been arrived at pursuant to misdirection…..”

D. DOCTRINE OF RECENT POSSESSION

(42) It is the Accused person’s submission that the Prosecution did not
prove that he was in possession of the allegedly stolen motor vehicle.
The Accused person adds that the burden of proving that he was in
possession of the said car was on the Prosecution, which it failed to
discharge. He relies on IDRIS MUKTAR & 20 OTHERS V. COUNTY
GOVERNMENT OF GARISSA & 7 OTHERS [2016] eKLR in support of
that submission. The make of the allegedly stolen car remains a
mystery; whether it was TOYOTA CROWN or TOYOTA AXIO, more so
because the court did not have the opportunity to see it in order to
verify this one way or the other. Consequently there is the issue of this
 car and the insufficiency of its identification by PW 1 and PW 3 as their
stolen motor vehicle.

(43) To invoke the doctrine of recent possession, the Prosecution must

prove beyond reasonable doubt each of the following four elements:

 First, that the property was stolen;

 Second, that the stolen property was found in the exclusive possession of
the accused;

 Third, that the property was positively identified as the property of the
complainant; and

 Fourth, that the possession was sufficiently recent after the robbery. As
to what constitutes “recent” possession is a question of fact depending
on the circumstances of each case including the kind of property, the
amount or volume thereof, the ease or difficulty with which the stolen
property may be assimilated into legitimate trade channels; the
property’s character, and so forth.

(44) In the case of MALINGI V REPUBLIC [1989] KLR 225, the Court of
Appeal had this to say about the doctrine of recent possession:

“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 their 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; that there are no co-
existing circumstances which point to any other person as having been
in possession of the items. The doctrine being a rebuttable
presumption of facts is a rebuttable presumption. That is why the
accused is called upon to offer an explanation in rebuttal, which if he
fails to do an inference is drawn, that he either stole or was a guilty
receiver…….”

(45) In the instant case, the Prosecution wishes to convince the Hon. Court
that the motor vehicle (of the make Toyota Crown-white in colour and the
Toyota Axio-grey in colour are one ant same) and that it was recovered in
possession of the Accused person. The Prosecution also wants to
persuade this Hon. Court that the motor vehicle was the stolen property
 as it was to be positively identified by PW 1-the owner- through
photographs. Although PW 3 was to be recalled for purposes of
identifying the photographs of the allegedly vehicle, this did not take
place and therefore the photographic exhibits remained unidentified.
The vehicle itself was not produced in court.

(46) It was due to the lack of a chain of evidence, and supporting evidence
that the Accused person queried his arrest with the motor vehicle alleged
to be the complainant’s property. If the lack of a chain of evidence meant
that there was no evidence to support the finding of possession then the
Accused person urges this Court to interfere.

(47) Possession of the car is circumstantial evidence. Invoking the

judgments of the Court of Appeal in ABANGA ALIAS ONYANGO V
REPUBLIC, CR. APP. NO 32 OF 1990 and SAWE V. REPUBLIC [2003]
eKLR, the Accused person submits that all the tests set out in the said
judgments, which must be satisfied before circumstantial evidence can
be relied upon to found a conviction, were not so satisfied. And further
on the authority of MARY WANJIKU GICHIRA V. REPUBLIC, CR. APP.
NO 17 OF 1998, he adds that suspicion alone, however strong cannot
form the basis of a conviction.

(48) The Hon. Court is urged not to rely on the principles of the judgment of
the Court of Appeal in KARUKENYA & 4 OTHERS V. REPUBLIC [1987]
KLR 458 where the Court considered the admissibility of evidence as
led to the recovery of the motor vehicle herein.

In that case two of the Accused persons, upon being interrogated by

the Police led them to a stationary car in which a G3 rifle was recovered
together with the rifle’s magazine, which was buried in a compound in
the vicinity. The court held that the conduct of the Accused persons of
taking the Police to places where the rifle and the magazine were
recovered was admissible evidence.

The trial court in the present case equally relied on the alleged special
knowledge of the Accused person herein as regards the motor vehicle to
void the possibility of other co-existing circumstances capable of
destroying the inference of guilt on the Accused persons’ part.

(49) When KARUKENYA & 4 OTHERS V. REPUBLIC (supra) was decided in

July 1984, Section 31 of the Evidence Act expressly allowed
admissibility of evidence discovered in consequence of information given
 an accused person whether the giving of the information amounted to a
confession or not. The provision, whose side note read “information from
accused leading to discovery of facts” provided thus:

“Notwithstanding the provisions of Sections 26, 28 and 29 of this Act,

when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, so much of
such information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.”

(50) However, in 2003, the Criminal Law (Amendment) Act, No 5 of 2003

effected fundamental changes to the law on confessions and
admissibility of information from an accused person leading to discovery
of evidence. Among the changes, a new Section 25A was introduced
into the Evidence Act, which made confessions inadmissible unless
made in court. In addition, Section 102 of the 2003 Act repealed Section
31 of the Evidence Act, meaning that henceforth information from an
accused person leading to discovery of evidence was not admissible . As
this Court noted in THOYA KITSAO ALIAS KATIBA V. REPUBLIC [2015]
eKLR, those changes were intended to address the then egregious
abuses and irregularities arising from confessions taken by the Police.

(51) The foregoing, it is humbly submitted, will put to rest the notion that the
Accused person was in possession of the allegedly stolen motor vehicle.

(52) The member of staff from the Registrar of Motor Vehicle who would
shed light whether the vehicle in question was a Toyota Axio or a Toyota
Crown; whether the car was grey in colour or white; whether the
documents in the log book were genuine and were recognized by the
Government.

(53) This Hon. Court is urged to consider:-

a. Whether the Accused person was the man actually arrested with
the allegedly stolen motor vehicle;

b. Whether it was the stolen motor vehicle;

c. Whether the Accused person’s defence raised any doubt on these

matters;

d. Whether the inference of theft at the time of the robbery charged

was properly drawn; or
 e. If it were not a case of mistaken identity.

(54) In the case of GIDRAPH THUO NDOLA VS REPUBLIC CA 12 &13 OF

2000 (NYR) the Court of Appeal said: -

“The manner in which the Accused person was arrested was not very
clearly explained ……. In our view the manner in which the Accused
person was arrested raises some doubts as to his participation especially
when his own defence is taken into account …”

E. OTHER GREY AREAS

(53) First and foremost this Hon. Court ought to doubt very much that the
Accused person knowing very well that the car he was driving was a
stolen one, he would drive it to precincts of High Court shortly after the
time it was stolen where he could easily be picked by the Police who
are always at such places.

(54) Although it is alleged that the matter was reported a second time at
Langata Police Station through OB No. 16/4/5/2015. The OB entry
showing these details was not produced in court. The accused had
applied for it to be produced in court; but the Prosecution dismissed
the same.

(55) The Accused person’s cousin (Suleiman Yasim) is said to have driven
the allegedly stolen motor vehicle from the precincts of the court. This
cousin did not record a statement with the Police and consequently did
not testify.

(56) An inventory was recorded at the scene of recovery. Present were the
Accused person, Sgt. Bitok, the Accused person’s alleged cousin, 2
Police Officers from Nyeri and another person who was to lend money
to the Accused person. However, none of the aforesaid people except
the Accused person signed the Inventory; rendering the same a
worthless piece of paper.

(57) The allegedly stolen motor vehicle was stolen in Nairobi and circulated
immediately after the said theft. However, it took a whole month before
the theft could be attributed to the Accused person.

(58) The weapon used by the assailants during the attack is variously
described as a wire and again as a rope. But in the first report the
witness states that the robbers were armed with pangas and guns. Talk
 of a person who could remember the identity of the assailants! No
wonder he did not attempt to give any descriptions of the Accused
person. Neither did the witness describe those who were not caught.

(59) PW 3 could not specifically tell the number of the attackers. He first
talked about one person, then two people and finally said they were
three.

(60) Section 163 (1) of the Evidence Act states:-

“The credit of a witness may be impeached in the following ways by

the adverse party, or, with the consent of the court, by the party
who calls him—

(d) By proof of former statements, whether written or oral, inconsistent

with any part of his evidence which is liable to be contradicted…”

(61) Quite obviously when analyzing the facts and the opposing evidence
in a trial the individual facts and the assessment of the relative
credibility of the witnesses thereon come first. It is incumbent on the
trial magistrate or judge to consider the evidence in its respective
stages and then arrive at a general conclusion on the totality of the
evidence after doing so.

(62) In NDUNGU KIMANYI VS. REPUBLIC (1979) KLR 282, the Court of
Appeal aptly observed as follows:-

“The witness in a criminal case upon whose evidence is proposed to

rely should not create an impression in the mind of the court that he is
not a straight forward person or raise a suspicion about the
truthfulness, or do (or say) something which indicates that he is a
person of doubtful integrity and therefore unreliable inordinate
witness which makes it unsafe to accept the evidence.”

F. CONCLUSION

(63) The evidence required in this kind of criminal offence is of such

quality that irresistibly compels the court to draw such inferences as
to the guilt of the Accused.

(64) The Prosecution felt that it proved its case beyond reasonable doubt
as evolved by Lord Sankey, L.C. in WOOLMINGTON V DPP (1935) AC
485. It needs no gainsaying that the doubts arising in this matter, as
 earlier on adumbrated, are legion. This Hon. Court is requested not to
close its eyes to them. All the ingredients of the offence charged have
not been clearly established. It is only when all the essential
ingredients for the offence have been established beyond per-
adventure that the case is proved beyond reasonable doubt

(65) In the case of J.O.O V REPUBLIC (2015) eKLR, it was held that:

“Whereas a court of law is always called upon to make decisions or

inferences on some set of circumstances, such a court should
endeavour to make such decisions or inferences on the basis of the
available evidence as adduced before it and it ought to be slow in
making assumptions not supported by facts as tendered before
court.”

(66) In R. V. GAGNON (L.), 2006 SCC 17, [2006] 1 S.C.R. 621 , the court had
this to say (at para. 19):

“This Court has consistently admonished trial judges to explain their

reasons on credibility and reasonable doubt in a way that permits
adequate review by an Appellate Court.”

(67) In R. V. J.P., 2014 NSCA 29, Justice Beveridge (Oland and Farrar JJ.A.
concurring) had cause to review a trial judge’s W. (D.) analysis and
stated:

“Frequently the resolution of criminal charges depends on the views

taken by a trial judge about the weight of the evidence he or she has
heard. By weight, I include both an assessment of the reliability and
the credibility of the Crown’s evidence, and the evidence, if any,
proffered by the accused.”

(68) To give an accused person the benefit of doubt in a criminal case, it is

not necessary that there should be many circumstances creating the
doubt(s). A single circumstance creating reasonable doubt in a
prudent mind about the guilt of an accused is sufficient. The accused
is entitled to the benefit of doubt not a matter of grace and
concession, but as a matter of right.

(69) It is humbly submitted that there is no direct, cogent, convincing and

compelling evidence to warrant the trial court to convict the Accused
person.
(70) The trial court ought to interrogate the defence case. In the case of
MBUGUA KARIUKI VS R (1979) KLR the Court of Appeal held:-

“No investigations were carried out in respect to the Accused

person’s statement in defence.”

(71) It is humbly submitted that the evidence adduced fell short of the
standard required in a trial of this magnitude and the circumstantial
aspects relied upon were disjointed and incapable of sustaining a
conviction.
It is only morally just that these submissions are allowed the
Accused person be set free in the interest of justice.

DRAWN AND FILED BY:

KAM/2004/019/LS

JACKSON KIHARA GACHUCHA ………………….…………..…………ACCUSED PERSON

TO BE SERVED UPON:-
THE HON. DIRECTOR OF PUBLIC PROSECUTION
NSSF BUILDING 19TH FLOOR SOUTHERN WING
NAIROBI