[2017] KEHC 2590 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL APPEAL NO. 148 OF 2015

(Being an Appeal from Original Conviction and Sentence in Criminal Case No.336 of 2013 of the Chief Magistrate’s Court at Naivasha before E. Kimilu – Ag. PM)

AMOS NDUATI GITAU....................................1ST APPELLANT

STEPHEN MBURU NDIRANGU......................ND APPELLANT

-VERSUS-

REPUBLIC........................................................PROSECUTOR

J U D G M E N T

1. The two Appellants herein were tried and convicted in the lower court on two counts of Robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars in the first count stated that on the 9th day of November 2012, at Embcom Networks Limited at Karagita Trading Centre within Naivasha District in Nakuru County, jointly with others not before court and while armed with dangerous weapons namely pistols they robbed Edward Gachioof Kshs 235,778/= and assorted scratch cards all valued at Kshs 315,466/= and immediately before or immediately after such robbery used actual violence to the saidEdward Gachio.

2. In the second count, it was stated that on 9th November,2012 along Maai Mahiu/Naivasha Road within Naivasha District in Nakuru County, jointly with others not before court and while armed with dangerous weapons namely pistols robbed they David Chege Mwangi of a motor vehicle registration number KAM 490P belonging to Ibrahim Kiarie Kabiru, valued at Kshs 350,000/= and immediately before or immediately after such robber used actual violence to the said David Chege Mwangi.

3. Having been convicted both counts, the Appellants were sentenced to death in respect of count 1 while the sentence on the second count was correctly held in abeyance.

4. Aggrieved by the outcome the Appellants have appealed to this court. For the purposes of this appeal the Appellants appeared in the same order as they did in the trial. Each of them filed amended grounds on the eve of the hearing of the appeal. The said grounds which are similar are that

“1. THAT, I pleaded not guilty to the above charges.

2. THAT, learned trial magistrate erred in law and fact while she convicted me on a prosecution case which was not proved beyond reasonable doubts; prove of identification was below the standards of prove thus robbery was not proved.

3. THAT, the learned trial magistrate erred in law by convicting me; the Appellant in misconstruing the circumstances of my arrest in Njoro and connecting it with the robbery in Karagita hence arriving at an erroneous findings. The evidence adduced was insufficient, contradictory and uncorroborated but she failed to give me this benefit.

4. THAT, the learned trial magistrate erred in law when she failed to advance any cogent reasons as to why she did nto believe my defense which in totality of the evidence adduced raised reasonable doubts to the whole prosecution case.” (sic)

5. Equally, the Appellants’ written submission are substantially similar and nothing will be achieved by setting them out severally. Concerning the 1st and 2nd grounds the Appellants argue that none of the complainants and witnesses to the robbery were able to identify the robbers or to give a description to police prior to the arrest of the Appellants and subsequent identification parades. Thus the reliance by the trial court on the evidence of PW4 was erroneous. Several authorities on these points, including Eria Sebwato -Vs- Republic [1960] EA 174and Terekali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259are cited in support of the submissions.

6. The Appellants complain, in arguing ground 3 that the trial court misapprehended the evidence of PW4 regarding their arrests in Njoro and put forth a ‘foreign’ theory (See Okethi Okale (1965) EA 555). They assert that the prosecution evidence on the robberies, arrest and identification is riddled with contradictions and is not credible. Finally on ground 4 the Appellants complain that while the prosecution evidence was wanting the trial court did not consider the defences put forth by the Appellants.

7. Appearing for the DPP, Miss Kavindu opposed the appeals and restated the prosecution evidence at the trial. Regarding the issue of identification in particular, she relied on the Court of Appeal decision in Hamisi Mungale Burehe -Vs- Republic [2015] eKLR to buttress the testimony of PW4who she said had identified and gave a description of the robbers at the earliest opportunity. In reply, the Appellants reiterated their earlier submissions and urged the court to compare the testimonies of PW3andPW4on identification.

8. The duty of the first Appellate court is to review the trial evidence and to draw its own conclusions. As stated by the Court of Appeal for Eastern Africa in Pandya -Vs- Republic [1957] EA 336 states:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

9. The prosecution case was that on the afternoon of 9th November, 2012 David Chege Nduati (PW4) while operating the vehicle KAM 490P as a taxi in Naivasha town, was hired by two men and a lady ostensibly to ferry them to Kijabe Hospital. They instructed him in the course of the trip to stop and pick their fourth companion. He obliged. Presently, the fourth companion who joined them whisked out a pistol. PW4was bundled out of the driver’s seat and sandwiched between the back seat passengers. One of the initial passengers, identified as the 1st Appellant, took control of the vehicle and drove in the opposite direction to Karagita.

10. On reaching Karagita, three of the passengers disembarked and shot in the air. They forced an MPESA attendant Edward Gachio Nduta(PW2) into the MPESA shop where they proceeded to forcefully take Shs 135,000/= in cash and airtime credit cards worth Shs 235,778/= before returning to the vehicle. They drove away.PW4 was ejected from the vehicle some distance from the main highway.

11. Meanwhile police were called to the scene and the vehicle was later found abandoned in Kayole area. On 7th November, 2013 Njoro Police acting on a tip off arrested the two Appellants both who, were handed over to Naivasha Police who were investigating matter.

12. The trial court found that a prima facie case had been established against the Appellants and they were placed on their defence. Both gave unsworn statements. The 1st Appellant testified that he was a resident of Karate, Naivasha and had travelled to Njoro on the day of his arrest to meet his cousin over a business proposal. He was arrested while waiting for the cousin, confronted with a lady, and his co-accused whom he said were strangers to him. He denied the charges.

13. As for the 2nd Appellant he was going about his business at Njoro stage and as he conversed with a lady hawker, he was arrested. The lady was also arrested and he denied he knew her. A second man also placed in custody.

14. This court having considered the evidence of the trial and the submissions on this appeal takes the view that the appeal turns on the sole issue of identification. There is no serious challenge regarding the occurrence of the two alleged robberies and the alleged victims thereof. I use the word ‘alleged’ deliberately as will become clear later in the judgment.

15. Further it is beyond dispute that the robberies took place in day time. That notwithstanding, neither PW2 nor Joseph Kimani Ndungu(PW1)PW1’s companion when the robbers struck could identify any of the Appellants as among the persons who robbed PW2. Indeed bothPW1andPW2stated that they were unable pick out any suspect when called by police to identification parades. PW1explaining, that he had not seen the male suspects properly (during the robbery).

16. It was PW4, the alleged victim and temporary driver of the getaway vehicle KAM 490P who claimed to have identified the Appellants during the robberies. He admitted that his was not a case of recognition, not having seen the Appellants previously. Despite this assertion and insistence by PW4that he noted peculiar features in respect of the 1st Appellant (one bad eye) which he also communicated to the police, the investigators inexplicably did not arrange an identification parade for PW4 to identify the suspects.

17. For his part, the investigating officer, PC Kiere(PW7) testified that the suspects were identified in Njoro for arrest by PW4. Not so, testified the arresting officer PC Chacha(PW8) of Njoro. According to him, an informer in Njoro tipped him off about the presence of some robbery suspects in a certain location in Njoro. That the informer did not state how he was connected with the robberies. Incidentally evenPW4in his evidence did not state that he was the one who tipped off PW8 or any other police officer regarding the location of the Appellants therefore leading to their arrest at Njoro.

18. Having considered the identification evidence by PW4, the trial court however concluded that PW4 acted both as an informer and a witness. The court proceeded to find that:

“It is my finding the PW4 properly identified his attackers on 9/12/2012 and there cannot be mistake on identification. He confirmed in his evidence that he described his attackers since offence was committed during the day time when it was very clear at first his attackers paused as client and he was not under any fear to facing them on their faces. The evidence of PW4 on identification cannot be said to be dock identification as submitted by defence. Accused persons were arrested after three months and PW4 could recall their faces hence leading to their arrest at Njoro. The circumstances of identification by PW4 were favourable and free from error.”

19. With respect, these findings are patently erroneous for two reasons, one of them factual, the other legal. First, there was no credible evidence upon which the court could conclude that the alleged informer to PW8 was the witness PW4. Secondly, in absence of confirmation of the alleged identification of the robbers by PW4 by way of an identification parade, PW4’s evidence amounted to no more than dock identification. It matters not whether he gave or did not give a detailed description of the robbers to police. The identification evidence in this case does not meet the standard set in the case of Hamisi Mangale which the DPP has called to his aid.

20. InAjode -Vs- Republic [2004]2 KLR 81, stated concerning such evidence that:

“It is trite law that dock identification is generally worthless and a court should not place much reliance on it unless it has been preceded by a properly conducted identification parade. It is also trite law that before such a parade is conducted, and for it to be properly conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade (see case of Gabriel Kamau Njoroge -Vs- Republic [1982 – 88] 1 KAR 1134).”

21. Besides, it is questionable howPW4, a Naivasha resident, trailed the Appellants all the way to Njoro, apparently going ahead of the Naivasha investigators. Looking at his entire testimony, this court was not impressed with the witness. It seemed to me that at best, PW4 was an unreliable witness and at worst, a possible accomplice in the robbery at Karagita committed against PW2. The circumstances in which he took charge of the robbery vehicle from PW3 and the entire account of the ensuing transaction in the company of the robbers, sounds dubious. In all likelihood PW4 facilitated the robbery at Karagita by availing the getaway vehicle to the robbers. In other words his allegation that the vehicle was forcefully taken from him might well be false.

22. In basing the conviction onPW4’stestimony, the trial court failed to look critically at his evidence in light of the entire transaction. The prosecution also attempted to create a link between the Karagita robbery and the pistol recovered from the allegedly gangster Henry Njoroge Ngugi, shot dead by police at Kikopey on 7/12/2012. None of the Appellants were arrested in possession of any firearm and neither was the Ceska pistol Exhibit 3 positively identified by any of the witnesses as the one toted by the robbers who allegedly hijackedPW4’svehicle or struck at PW2’s shop.

23. In conclusion, the prosecution evidence against the Appellants was weak and doubtful and could not, when properly considered, justify their being called upon to make a defence. In the circumstances, the convictions against the Appellants on the two counts of Robbery cannot be allowed to stand and are hereby quashed. Consequently, the death sentence in respect of the first count is set aside. The Appellants are to be set at liberty forthwith unless otherwise lawfully held.

Delivered and signed at Naivasha, this 5th day ofOctober, 2017.

In the presence of:

Miss Amboko for the DPP

N/A for the Appellants

C/C – Barasa

Appellants - present

C. MEOLI

JUDGE