[2016] KECA 329 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, GATEMBU & MURGOR, JJ.A)

CRIMINAL APPEAL NO. 22 OF 2014 (R)

BETWEEN

ALBERT BARASA …………………………………………… 1ST APPELLANT

ELPHAS ALI LUVISIA ……………………….……………… 2ND APPELLANT

AND

REPUBLIC ………………………………………………………. RESPONDENT

(An Appeal from a conviction and/or Judgment of the High Court of Kenya at Kakamega (Lenaola & Onyancha, JJ.) dated 20th October, 2011

in

HCCRA NO. 152 OF 2009)

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JUDGMENT OF THE COURT

1. The appellants were jointly charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. They were convicted and sentenced to death before the Senior Resident Magistrate’s Court at Butali. Their first appeal to the High of Kenya at Kakamega was unsuccessful, hence this second appeal.

2. The particulars of the aforesaid charge were that on the 17th day of September, 2008 at Mugai village, Shirugu location in Kakamega North District, the appellants, while armed with pangas and rungus, jointly robbed Janet Nanyeni of cash Kshs.32,000/= and at or immediately after such robbery used actual violence to the said lady.

3. The complainant’s evidence was that on the material day at 5. 30 a.m. she started a journey to Webuye town. She had earlier on telephoned a motor cyclist, Charles Luseno, PW2 to go to a road near her home to pick her up.

4. As she walked along a rough road to the place where she was to meet PW2, with the aid of torch light, she saw someone following her. She recognized the person as Elphas Luvisia, the 2nd appellant, who asked her why she was spotlighting him. She put off the torch light and started to run.

5. The complainant then saw another person ahead of her and she put on the torch light again, which helped her recognize the second person as Albert Barasa, the 1st appellant. She began to scream and within no time the 1st appellant caught up with her, grabbed her hand and pulled her towards the main road. The 1st appellant snatched her handbag that contained Kshs.32,000/= and threw it to the 2nd appellant. The two appellants assaulted the complainant and then ran off.

6. PW2 arrived at the scene. With the aid of his torch light he saw the 2nd appellant running away. He telephoned the complainant’s husband who picked her up and took her to hospital.

7. Later on the complainant reported the incident to the area Assistant Chief and to Malava Police Station. She mentioned the names of her assailants. The appellants had gone missing from their respective homes and remained in hiding for about six months. When they re-surfaced they were promptly arrested and subsequently arraigned in court.

8. In their defence, the appellants denied the charge and only testified as to how they were arrested.

9. The appellants, in their memorandum of appeal filed through M. Kiveu Advocate, stated that the first appellate court did not properly evaluate the evidence on record, misdirected itself in law on the issue of identification/recognition of the appellants and thereby reached a wrong conclusion.

10. Mr. Masake, learned counsel for the appellants, submitted that there was no evidence as to how bright the torch light was, and whether it was sufficient to enable the complainant recognize her assailants. He made similar submissions regarding the evidence of PW2, who testified that he had seen the 2nd appellant running away. In his view, the evidence of recognition was not weighty enough to sustain a conviction.

11. Mr. Masake further submitted that there was no sufficient evidence that the appellants had disappeared from their respective homes following the robbery, saying that neither the area Assistant Chief nor the village elders were called to testify on the issue, instead the court relied on the evidence of the investigating officer only.

12. Mr. Ogoti,Senior Assistant Director of Public Prosecutions opposed the appeal. He submitted that the evidence of both PW1 (the complainant) and PW2 was sufficient to show that they had recognized the appellants.

13. We have carefully considered the evidence on record as well as submissions by counsel. The principles that a court ought to take into consideration when relying on visual identification to sustain a conviction were set out in WARANGA V REPUBLIC [1989] KLR 424where this Court stated:

“It is law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

The appellants’ conviction was based on their recognition by both PW1 and PW2. PW1 said that the two appellants were well known to her. The 1st appellant is married to a daughter of the complainant’s aunt while the 2nd appellant was her tenant. PW1 was able to see her assailants with the aid of torch light. The 1st appellant even called out the complainant’s name.

14. PW2 had known the 1st appellant since 2007 and said that he saw him when he was fleeing away from the scene. The evidence of PW2 corroborated the complainant’s evidence. As was held in ANJONONI & OTHERS V REPUBLIC [1981] KLR 854, recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger.

15. When the complainant made a report to the police she named the appellants as the persons who had assaulted and robbed her.

16. We do not agree that the first appellate court did not re-evaluate the evidence that was adduced before the trial court. We are satisfied that it did so and arrived at a well found conclusion.

17. We find no merit in this appeal and dismiss it in its entirety.

Dated and Delivered at Kisumu this 29th day of July, 2016.

D. K. MUSINGA

……………………………

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

…………….……………….

JUDGE OF APPEAL

A. K. MURGOR

……………………………

JUDGE OF APPEAL

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

DEPUTY REGISTRAR