[2007] KEHC 1692 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

Criminal Appeal 287 of 2004

(From original conviction and sentence of the Chief Magistrate's Court at Nakuru in Criminal Case No. 1127 of 2004 -A. B. Mongare [SRM])

AMOS MUNGAI KARANJA....................................APPELLANT

VERSUS

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

JUDGMENT

The appellant, Amos Mungai Karanja, with three others, was first charged with the offence of stealing stock contrary to Section 278 of the Penal Code but the charge was later substituted with the offence of robbery with violence contrary to Section 296(1) of the Penal Code. The particulars of the offence were that on the 17th February 2004 at Utalii area, Mau Narok in Nakuru District, the appellant jointly with others while armed with rungus and pangas robbed Peris Wanjiku of her Great wall TV and motor vehicle battery valued at Kshs 7,600/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Peris Wanjiku. The appellant pleaded not guilty to the charge and after a full trial he was convicted as charged and sentenced to serve five (5) years imprisonment with hard labour. The appellant was aggrieved by his conviction and sentence and has appealed to this court.

In his petition of appeal the appellant raised several grounds challenging his conviction by the trial magistrate. He was aggrieved that the trial magistrate had failed to consider the fact that the prosecution had adduced insufficient, contradictory and uncorroborated evidence that did not establish his guilt to the required standard of proof. He was further aggrieved that the trial magistrate had failed to consider the fact that the alleged offence took place at night and therefore it was impossible for the perpetrators of the offence to be identified. He faulted the trial magistrate for failing to consider his defence before he arrived at the said decision convicting him. At the hearing of the appeal, this court heard the oral submissions made by the appellant (who was acting in person)and the reply thereto made by Mr. Mugambi on behalf of the State. Whereas the appellant urged this court to re-evaluate the evidence and find that the prosecution had not established its case to the required standard, Mr. Mugambi urged this court to find that the prosecution had adduced sufficient evidence to sustain the conviction of the appellant on the charge of robbery with violence. He urged this court to dismiss the appeal.

This court shall consider the submissions made on this appeal after briefly setting out the facts of this case. On the 17th February 2004, PW2 Waithera Kamau Njoroge left her homestead at Mutukanio B in Mau Narok heading towards Nakuru. It was at 4. 00 a.m. She testified that outside her gate she saw the appellant with his co-accused in the lower court who was however acquitted. She asked them what they were doing at her gate. She did not get any answer. She testified that she was able to identify the appellant by the headlights of a motor vehicle which had stopped near her house. When she returned home in the evening, she was told by PW3 Peris Wanjiku Kariuki, her grand-daughter then aged sixteen (16) years that she had been attacked by four people who assaulted her. They robbed PW3 of a black and white Great wall television together with its battery. It is apparent that no report was made to the police when this incident occurred.

On the 9th May 2004, the house of PW2 was broken into at night and her cow was stolen. The cow was never recovered. PW2 made the report to the police leading to the arrest of the appellant and his alleged accomplices. The appellant was initially charged with the offence of stock theft but the charge was later substituted to the one of robbery for which he was convicted. PW3 Peris Wanjiku Kariuki testified that she was assaulted by the appellant and three others when her grandmother had gone to the market on the 17th February 2004. They robbed her of their black and white TV and its battery. She screamed and sought help from her neighbours. PW4 Naomi Nyambura Ndirangu responded to the screams and saw that PW3 had sustained an injury on the left side of her face. She took PW3 to Mau Narok hospital where she was treated and discharged. She did not see the people who assaulted PW3. PW1 Dr. Paul Gachunga produced the P3 form which had been filled by Dr. Kepkon in respect to PW3. Dr. Kepkon examined PW3 on the 20th May 2004 and found that PW3 had a scar on her head which was measuring 1. 5cm by 5cm and which was approximately two months old. He was of the opinion that the injury had been caused by a blunt object. The P3 form was produced an exhibit in court.

PW5 PC Moses Kandie testified that on the 10th May 2004 while he was at Mwisho wa Lami Police Patrol Base, he received a report from PW2 that her cow had been stolen. He accompanied PW2 to her house where he found the appellant already apprehended by the members of the public who suspected him of having stolen the cow. He arrested the appellant and took him to Mau Narok police station. When the appellant was put on his defence, he denied that he had assaulted PW3. He testified that he was arrested when he had gone to Maasai land to farm. He denied that he had anything to do with the robbery at the house of PW2.

This being a first appeal this court is mandated to reconsider and to re-evaluate the evidence adduced before the trial magistrate's court so as to arrive at its own independent decision whether or not to uphold the conviction of the appellant. In reaching its determination, this court is required to put in mind the fact that it neither saw nor heard the witnesses as they testified and therefore cannot be expected to make any decision as to the demeanour of the witnesses (SeeNjoroge -vs- Republic [1987] KLR 19). I have heard the submissions made by the appellant and the response thereto made by Mr. Mugambi on behalf of the State. I have carefully re-evaluated the evidence adduced before the trial magistrate. The issue for determination by this court is whether the prosecution proved its case on the charge of robbery with violence against the appellant to the required standard of proof beyond reasonable doubt.

It was the prosecution's case that the appellant together with three others robbed PW3 when she was at her home after her grandmother PW2 had gone to the market. PW3 testified that she was robbed of a black and white television set and a battery. The robbery is alleged to have taken place on the 17th February 2004. It is not clear from the prosecution's evidence at what time the said robbery took place. From the testimony of PW3 and PW4 it can be gleaned that the robbery took place during day time. In the course of the said robbery, PW3 was hit on the face causing her to sustain a blunt injury. However no report of the robbery incident was made to the police. On the 9th May 2004 the homestead of PW3 was again visited by robbers. Their cow was robbed from them. The said cow was however not recovered. PW2, the grandmother of PW3 made a report to the police. This is the first time that PW2 made any report to the police. PW5 accompanied PW2 to her homestead where he found the appellant having been apprehended by the members of the public. He then arrested the appellant and took him to Mau Narok Police Station. The appellant was initially charged with the offence of Stock Theft under Section 278 of the Penal Code before the charge was later substituted to that of robbery with violence contrary to Section 296(1) of the Penal Code.

Upon re-evaluating the evidence adduced before the trial magistrate and in light of the submissions made before me on this appeal, it is evident that the appellant was arrested by the police on the 14th May 2004 in connection with the theft of the cow of PW2 on the 9th of May 2004. The issue of the robbery of the television set and the battery was later raised when the police could not find any evidence to connect the appellant with the theft of the cow. It should be noted that PW2 and PW3 did not make any report to the police of the theft of the television set and the battery when it allegedly occurred on the 17th February 2004. It is evident that even if it is true that the said television set and battery were robbed from the house of PW2, the appellant and his co-accused were not suspects. They had not been identified as the persons who robbed PW3. It is clear that the robbery charge against the appellant was brought up by the police as an afterthought after they realised that the charge of stock theft would not stick due to lack of sufficient evidence. The cow which was robbed from PW2's homestead was not recovered. It is imperative that when an accused person is arrested on suspicion on having committed a certain offence, then he should be charged with the said offence unless it can be established that investigations had revealed that the accused person had committed other offences.

The evidence of PW2 and PW3 as regard the circumstances under which they alleged to have identified the appellant raises doubt that the appellant actually committed the offence of robbery. The house of the appellant was not searched to establish if indeed he was in possession of the said television set and battery. Other than the alleged evidence of identification, the prosecution did not adduce any other evidence which sufficiently connected the appellant to the said crime. Upon carefully evaluating the evidence adduced by the prosecution witnesses, it is clear that the prosecution did not adduce sufficient evidence to sustain the conviction of the appellant on the charge of robbery. The manner in which the prosecution substituted the charge from that of stock-theft to robbery with violence clearly established that the prosecution went on a hunting expedition whose sole aim was to have a charge stick on the appellant. The circumstances of this case raise reasonable doubt that the appellant actually committed the offence for which he was convicted.

His conviction is therefore unsafe. It is hereby quashed. The appellant is acquitted of the charge of robbery with violence contrary to Section 296(1) of the Penal Code. He is ordered set at liberty forthwith and released from prison unless otherwise lawfully held.

It is so ordered.

DATED at NAKURU this 9th day of March 2007

L. KIMARU

JUDGE