[1998] KEHC 19 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Appeal 67 of 1997, 69 of 1997, 68 of 1997 & 70 of 1997

ALI MOHAMED MULOGA ............. .................................................... APPELLANT

VERSUS

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

CONSOLIDATED WITHCRIMINAL APPEAL NO.69 OF 1997

ALI MWARUKU MWANGUA ............................................................... APPELLANT

VERSUS

REPUBLIC……………………………………………………………… RESPONDENT

CONSOLIDATED WITHCRIMINAL APPEAL NO.68 OF 1997

JUMA IBRAHIM ........................................................................................ APPELLANT

VERSUS

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

CONSOLIDATED WITHCRIMINAL CASE NO. 70 OF 1997

SULEIMAN HAMIS ALI.................................................................... ……... APPELLANT

VERSUS

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

(All from Original Convictions and Sentence in Criminal CaseNo.3988 of 1995 of the Snr. Resident Magistrate's Court atMombasa - Ms. J.O. Siganga, SRM)

JUDGMENT

The four appellants ALI MOHAMED MULOGA, JUMA IBRAHIM, ALIMBARUKU MWANGUA and SULEIMAN HAMISI ALI were originallycharged with Robbery with violence contrary to section 296(2)of the Penal Code, shop breaking and committing a felonycontrary to S.306 (a) of the Penal Code and assault causingactual bodily harm contrary to S.251 of the Penal Code. Itwas alleged that on 16-10-95 at about 2 a.m. at JiviweniVillage Mtongwe within Mombasa District jointly with othersnot before court unlawfully assaulted Rombo Omar therebyoccasioning him actual bodily harm. At the trial fourwitnesses gave evidence for the prosecution while all the(three) accused gave unsworn statements in their defenceexcept Suleiman Hamisi Ali, the first accused in the LowerCourt and the fourth appellant here gave a sworn statement.They were however convicted of these offences on 14-2-97 byJ.O. Siganga SRM and sentenced to death on count 1, then onthe second count of shop breaking and committing felony eachwas sentenced to serve three years jail term and to receivefour strokes of the cane and on the third count of assaultcontrary to section 251 each was sentenced to serve 18 monthsjail, and all the jail terms ordered to run concurrently.

The evidence against them tendered by the four witnessescalled by the prosecution was that at about 2 a,m on 16-10-95PW.l Abdalla Yahaya was sleeping in his house when he heardpeople talking outside the house. He looked through thewindow and saw many robbers outside and particularly saw fourof them carrying a heavy load of stones in a sack using it tohit the door to force it open. Some of these robbers werearmed with arrows and bows. The robbers flashed the windowwith a torch. The window had a wire mesh. PW.l climbed onthe ceiling but it was not finished so the robbers could seehim, they ordered him to come down but he cried out "thief,thief" and they threw stones and arrows at him. Someneighbours heard his cry and blew a whistle at which therobbers fled but on their way they met PW.3 Omar Kombo andbeat him up but on seeing PW.l they left him and ran away.

On Identification it is common ground that the attackhappened at night but PW.l says he knew the people as he waschasing them where there were street lights. He said thatfrom his window he could see them in the light on the streetand he could also see them clearly when inside the house asthe lights lit up inside the house. He recognized them. Hesaid he used to work with Suleiman Hamisi Ali, the firstaccused then but here the fourth appellant for 1 year and evensaw him when he left the job. He also identified Ali MohamedMuroga the fourth appellant but accused No.2 from the ceiling.

He identified Ali Mobarak Mwamna accused No.3 as one of therobbers who then was wearing shorts and had a cap on andfurthermore PW.l said that he used to see him in the Estate.So was accused No.4 Juma Ibrahim whom PW.l says he used to seefor 4 years previously. It was Juma Ibrahim appellant No.2who flashed a torch on PW.l and ordered him to shut upenquiring as to where he was. PW.l also had seen andidentified Juma Ibrahim the second appellant and 4th accused.PW.2 Ibrahim Salim brother to PW.l whose shop was brokeninto heard his brother's screams at about 2 a.m. and came tohis rescue. He saw about 20 people armed with rungus andstones. He said he recognized Suleiman Hamisi accused 1,Appellant No.4. He was his neighbour and he knew his wife tohave come from the same village. As his house is near theroad where street lights were, he could well see the robbers.The fourth appellant Suleiman Hamisi told him "to-day Mzee weshall fight". He recognised accused No.2 Ali Mohamed Mulogawhom he saw running out of the shop. About accused No.3 AliMbaruku Mwanqua. PW.2 said he recognised him well as he wasinside and was carrying a pint of water. Besides he was aneighbour, he also hit his arm, and of accused No.4 JumaIbrahim, PW.2 said he saw him because of the bright securitylight outside. PW.3 Kombo Omar Kombe said that on hearing thecry of "thief" "thief" he ran out and saw many people whom heknew and he recognised, even from 40 metres away. Heidentified Suleiman Hamisi Ali accused one/appellant No.4carrying a knife. He also identified accused No.l Ali Mohamed- Appellant No.l carrying stones in what resembled a basket.He recognized Juma Ibrahim accused 4/appellant No.2 as the onewho held stones in his hands and he also identified accused 3Ali Mbaruku, appellant No.3 who also carried stones. Therewere others, They threw stones at the witness. He appealedto him to desist, but Accused 1 Suleiman Hamisi Ali, appellantNo.4 ordered others to finish PW.3 as he had recognized him.He hit PW.3 with an axe and he became unconscious but regainedit later at the Coast General Hospital. He said all theappellants here were all his neighbours and he used to seethem. All the witnesses described the attackers to thepolice. The witnesses were all hurt in the attack andbelongings were stole from the shop. PW.4 P.C. Dickson Wahesotogether with some APs arrested the accused persons around 16-10-95 and charged them with the offences.

In their defence 1st Appellant Suleiman Hamisi Ali sworesaying after coming from hospital to see his wife who wasadmitted and after talking to her parents he went home. Heknew nothing about the robbery. Ali Mohamed Muloga 2ndaccused but 1st appellant pleaded an alibi saying he wasfishing during the whole night of 16th/17th October, 1995. Accused 3 Ali Mbaruku Mwandiwa , appellant No.3, says inunsworn statement that he was on duty at the material time.

He works at Likoni Ferry as an Escort to the Ferry driver.Juma Ibrahim Juma accused 4 and appellant No. 2 said in unswornstatement that on 16-10-95 he was asleep in his home and heknew nothing of the robbery.

The learned Senior Resident Magistrate after hearing thisevidence found that the four with the others not before courthad acted with common intention with accused 1 and convictedthem on all the three charges of robbery with violence, shopbreaking and assault as was stated herein above on 14-2-97 andsentenced them each to death, 3 years jail and 4 strokes of the cane and 18 months imprisonment jail terms to runconcurrently.

They have appealed separately but the 3rd and 4thappellants were represented by counsel and it may beconvenient to consider first, their appeal. Miss ShariffAdvocate argued the appeal for fourth accused Juma Ibrahim 2ndappellant and first accused Suleiman Hamisi Ali the fourthappellant. She attacked identification of the appellantssaying the prosecution witnesses did not establish thesituation and position of the lights and how that distancecould have had any effect on the cogency of identification.She wondered how the three prosecution witnesses could havebeen able to pin point only the first and fourth appellants.She said that P3 forms relating to the complainants' injurieswere not produced by the doctor(s) who wrote them. So that itfailed to be evidence in the case. Miss Shariff argued thatPW.l who is said to have chased the thieves in the night leftthe chase and returned to his house without concluding the

chase and that he broke the chain of connection when he neverreported immediately but went to work the next day insteadwithout reporting.

The positioning of the alleged lights in relation to theidentifying witnesses were not stated. No identificationparade was held.

Of Appellant No. 4 (accused 1) nothing was found in hispossession and no finding as to recent possession and therewas no consideration to the defence. Miss Shariff extendedthese arguments and applied them to the arguments relating toappeal of the appellant No.3. She said the appellants couldnot be found guilty of assault just because 4th appellant wassaid to have committed it so without a finding first of commonintention.

Earlier on the two unrepresented appellants argued theirgrounds of appeal.

Ali Mohamed Muloga challenged the evidence ofidentification. He said that there were no street lights nordid the PW.l describe the nature and type of the light. Hechallenged the admission into evidence of P3 form (Ex.1)belonging to PW.3 Omar. Second appellant Ali Mwangua alsoargued his 5 grounds together and he also challenged theevidence of identification saying it was difficult for properidentification to be achieved through a wire mesh on thewindow. He said the report recorded in the OB did not saythat appellant No.2 Ali Mwangua was a neighbour and if robberswere wearing black clothes and caps he wondered how he managedto recognise him, PW.3 was 40 metres away he wondered how herecognised anyone.

The State does not oppose these appeals and has notsupported the conviction, but we are not obliged to follow thestand taken by the prosecution. We still would have to besatisfied on the evidence that the lower court for the reasonscomplained of was not entitled to come to the conclusion shearrived at in convicting the appellants.

We have looked at the evidence and it all hangs on theevidence of PW.l who says he saw about 40 people from insidehis house in the lights outside. The appellants hadcomplained against this picking on every conceivable pointthat would shake reliance on it. There are two things thatstand out, first it was at night, the light outside could havebeen bright enough to shed adequate illumination for properidentification, but this is a point which the appellantsseemed to have mastered and pressed strongly in theirarguments before us, but even if that were so, the prosecutionshould, to discharge the burden of proof on prosecution, havegone further in their presentation to show the court how thatintensity of illumination could have aided the identificationevidence they were relying on. One way of showing this is toshow actual distances so that it is not relegated to the realmof conjecture and opinion. Another way of affecting theseproofs based on lighting is to describe to the Court thenature of lighting available at the time and then the lengthof time and opportunity available for such viewing. We do notascribe to the view pressed on us in these appeals thatbecause robbers flashed light then they could not beidentified because the victims were blinded nor do we acceptthat there is a rule of law which says that light on thestreet cannot shed adequate light to the adjoining rooms. Itall depends on the circumstances of each case, and this is whyit is necessary for each prosecution to delve intocircumstances of each case and prove it as a fact.

PW.l's evidence was assailed vehemently by the appellantson grounds that he would have been too scared to identifyanyone because of the raid. As far as we are aware we havenot been shown any principle of law that qualifies the smashand grab raid of marauding thieves as being able to paralysehuman senses of seeing and recognition in those who witnessthe event. It was argued as though we need to take a judicialnotice of it but as we state it is not before us as anotorious fact of medical knowledge or of human condition totake judicial Notice of. All this as we say depends on thefacts of each case.

In this case we accept that there was light illuminatingthe area, but we are not certain how each of the identifyingwitnesses was impacted by this light. That was not shown.Secondly PW.3 says he was able to identify his victims from 40metres away. That unless properly explained gives a sense ofexaggeration. Then there is use of the word "neighbour" whichall these identifying witnesses used to describe theappellants. Yet there was no reference to how close weretheir places of abode. "Neighbour" according to The ChambersDictionary means "a person who lives near or next door toanother-" It is also necessary, although not a must for theprosecution to tie up identification by holding identificationparades but this was not done here.

The prosecution have not supported these convictions onthe issue of light. We say that this is a case really on theborder-line in that the identification was almost that ofrecognition but the basis of that recognition was based ontheir being neighbours yet the fact that neighbourhood orneighbourliness was not confirmed and established.

The learned Senior Resident Magistrate failed tocritically look at these items.

It might be pointed out that because this is a capitaloffence the trial court ought to have been more circumspect.

We agree with the State Counsel that it is one of these caseswhere the Court should visit the Locus in Quo.

We think that in the totality of evidence there was doubtoccasioned herein that must be resolved in favour of theappellants and because of this we allow these appeals, quashthe conviction and set aside the sentences of death imposed onthem and other sentences. We must also reiterate that forpersonal violence offences the production of P3 form ought tobe produced in evidence in accordance with the law.

Dated at Mombasa this 6th Day of November, 1998.

A.I NAUANGA

JUDGE

P.N. WAKI

JUDGE