[2021] KECA 1062 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(CORAM: MUSINGA, J. MOHAMMED & KANTAI, JJ.A.)

CRIMINAL APPEAL NO. 77 OF 2014

BETWEEN

ANTHONY NDAMBIRI MWANIKI...............................................1STAPPELLANT

MICHAEL GITHINJI WAIMIRI..................................................2NDAPPELLANT

MARTIN MUNGAI GITAHI.........................................................3RDAPPELLANT

AND

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

(Being an appeal from the Judgment of the High Court of Kenya at Kerugoya (Ong’udi & Githua, JJ.) dated 4th July 2014

in

CR. APP N0. 238 & 240 of 2012. )

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JUDGMENT OF THE COURT

1. The appellants were charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. The particulars of the offence were that on the night of 9th and 10th March 2010 at Sagana Trading Centre, Kirinyaga District, jointly armed with offensive weapons to wit, metal bars, robbed George Mugambi a motor vehicle registration number KAS 052W Toyota Corolla Saloon, mobile phone make Small N961 FM, all valued at Kshs.445,000 and at the time of such robbery killed the victim, George Mugambi (the deceased).

2. Following a full trial before the Senior Principal Magistrates’ Court at Kerugoya, the appellants were convicted and each sentenced to death. Being aggrieved by the said conviction and sentence, they preferred an appeal to the High Court at Kerugoya, which found the appeal wanting in merit and dismissed it. Undeterred, the appellants moved to this Court on a second appeal.

3. On a second appeal, by dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. The first appellant’s ground of appeal are that both the trial court and the first appellate court disregarded his defence of alibi; that the two courts below failed to resolve discrepancies in the prosecution case in his favour; that there was no proper analysis of the doctrine of recent possession by both courts; that some important witnesses were not called; that his conviction was unsafe for reliance on the DNA analysis of his blood sample as the process was in contravention of section 122 A (1), B and D of the Penal Code as amended by Act No. 5 of 2003; that the circumstantial evidence relied upon was not sufficient to warrant a conviction; and that the death sentence meted out, though lawful was excessive.

4. The 2nd and 3rd appellants, who were represented by Mr. Morris Njagi, argued that the first appellate court failed to make an independent assessment of the evidence that was tendered before the trial court; that the appellants were tried on two charges of robbery with violence and murder on the same charge sheet and therefore the charge was duplex; that the DNA samples were illegally obtained; that section 200 of the Criminal Procedure Code was not complied with; that the allegedly stolen motor vehicle and the mobile telephone were either not produced or were wrongly produced before the trial court; and that the first appellate court did not make a proper consideration of the 2nd and 3rd appellants’ defences.

5. The respondent opposed the appeal. Both parties filed written submissions and a bundle of authorities and chose to rely on the same entirely, without making any oral submissions. Mr. Ombongiheld brief forMr. Gorfor the 1st appellant,Mr. Njagiappeared for the 2nd and 3rd appellants, while Mr. Ondimu represented the office of the Director of Public Prosecutions.

6. It is necessary that we briefly state the salient facts of the case before we consider the grounds of appeal as stated above. Gilbert Muturi Waweru, PW1, was the owner of motor vehicle registration number KAS 052W, which he purchased from Stephen Njoroge, PW10. PW1 used the motor vehicle as a taxi in Nyeri town. He had two drivers, Shadrack Wanjohi Mwangi, PW4, and the deceased.

7. On the night of 9th and 10th March 2010 the motor vehicle (the taxi) was under the control of the deceased. At 8 p.m. the deceased was called by PW4 and given contacts of a customer who wanted to be taken to Karatina, which the deceased did. Shortly thereafter another customer called PW4 asking to be picked. PW4 directed the customer to the deceased since he was the one on duty. The deceased must have been hired to drive the customer to Karatina, but that was the last time the deceased would be seen alive.

8. At about 3. 00 a.m. on 10th March 2010, Corporal Lilian Kirui, PW9 Police Constable James Njoro, PW11, and two other police officers were on night duty at the entrance to Jomo Kenyatta International Airport (JKIA). They saw motor vehicle registration number KAS 052W (the taxi) approach the entrance using the express lane and they flagged it down. The 1st appellant was the driver, and the 2nd and 3rd appellants were seated on the rear seat. Both the 2nd and 3rd appellants had blood stains on their clothes; there was a kitchen knife wrapped in a polythene paper near the gear box, a cream sweater and brown ladies’ shoes that had blood stains; the three appellants were escorted to the report office and were received there by Police Constable Patrick Marete, PW8.

9. PW8 noticed that the 2nd appellant was attempting to throw away a mobile phone that was in his possession. None of the appellants gave any satisfactory account to the police as to why the vehicle was blood stained.

10. The blood-stained clothes and the kitchen knife were taken to Government Chemist for examination. Meanwhile the body of the deceased was found somewhere between Sagana and

Karatina. Blood samples from the appellants as well as from the deceased were taken to Government Chemist for DNA tests. A Government Chemist testified that the blood samples from the appellants’ clothes, the car and the kitchen knife matched the DNA profiles of the deceased.

11. Solomon Ngotho, PW2, identified the mobile phone that was found in the possession of the 2nd appellant and produced in court as belonging to the deceased. The purchase receipt was also produced as an exhibit. The motor vehicle was also produced as an exhibit before the trial court. The trial court made factual findings that the mobile phone belonged to the deceased and that the vehicle was the same one that the deceased was driving on the material night. These factual findings were affirmed by the first appellate court and therefore they cannot be raised in a second appeal.

12. In his defence, the 1st appellant testified that on the material night he was with a friend of his at a certain bar in Nairobi; that he went to a ladies’ toilet by mistake and a lady he found there caused him to be arrested and beaten by three huge men, who later on took him to a certain road block and put him in a vehicle’s boot; that he was assaulted and taken to a police station where he was photographed.

13. The 2nd appellant said that on the material night at about 11 p.m., while totally drunk at a certain bar in Nairobi, he was put in a taxi by some bouncers and at 6. 00 a.m. he found himself at JKIA Police Station, where he was shown some people whohe had earlier on seen in the taxi; and that at 10 a.m. they were taken to Kenyatta National Hospital where blood samples were taken from them.

14. The 3rd appellant told the court that on 9th March 2010 he hired a taxi at Nyeri to take him to Nairobi to pick a certain machine. They got to Nairobi at 11 p.m., and as they waited for his cousin, three people approached them, one of them, who turned out to be the 2nd appellant, was very drunk. They talked to the taxi driver, the 1st appellant, who agreed to take the 2nd appellant to Mlolongo; that on the way they were stopped by some police officers, searched, arrested, and taken to several police stations. Each of the appellants denied any involvement in the said robbery.

15. Both the trial court and the first appellate court were satisfied that although there was no direct evidence to connect the appellants to the robbery, there was sufficient circumstantial evidence that it was the appellants who forcefully robbed the deceased. The two courts below also relied on the doctrine of recent possession. As earlier stated, our task as the second appellate court is to consider whether there are serious issues of law to warrant the setting aside of the trial court’s judgment that was affirmed by the first appellate court.

16. We start by considering the circumstantial evidence that connected the appellants to the robbery. In Sawe v Republic[2003] eKLR, this Court held that:

“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts to the party accused.”

17. On the material night the taxi that was being driven by the deceased was hired to take some people to Karatina. Later on, the deceased’s body was recovered somewhere along Sagana-Karatina road. On the same night, the taxi was stopped by police officers at the entrance to JKIA and there was no dispute that the three appellants were the only occupants of the same. It was being driven by the 1st appellant. The vehicle had blood stains and none of the appellants were able to explain how the blood came to be in the vehicle. The 2nd and 3rd appellants also had blood-stained clothes.

18. Although the appellants have questioned the manner in which their blood samples were taken for DNA profiling, the results showed that the blood samples that were in the taxi and on the appellants’ clothing matched that of the deceased.

19. Turning to the ground of appeal regarding the extraction of the appellants’ blood for DNA sampling, section 122 A (1) of the Penal Codestates as follows-

“(1) A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.”

20. Section 122 Cand122 Dstipulate as follows: -

“122 C:

(1) Nothing in section 122A shall be construed as preventing a suspect from undergoing a procedure by consent, without any order having been made: Provided that every such consent shall be recorded in writing signed by the person giving the consent.

(2) Such consent may, where the suspect is a child or an incapable person, be given by the suspect’s parent or guardian.

122 D:

The results of any test or analysis carried out on a sample obtained from a DNA sampling procedure within the meaning of section 122A shall not be admissible in evidence at the request of the prosecution in any proceedings against the suspect unless an order under section 122A or a consent under 122C is first proven to have been made or given.”

21. PW5, Inspector Mutiso Kioko, testified that the appellants consented to undergoing the DNA blood procedure at Kenyatta National Hospital where he took them. The appellants were all represented by advocates during the trial. The issue of the appellants’ consent was not raised in the two courts below, andneither did the appellants object to admission of the DNA results before the trial court. In our view, therefore, the appellants did not demonstrate that the aforesaid sections were violated in any way. And in any event, the issue ought to have been raised before the two courts below.

22. We are therefore satisfied that the circumstantial evidence squarely pointed to each of the appellants as the only people who must have robbed the deceased of the said motor vehicle, having been found in possession and occupation of the same the very night the deceased was found dead, with their clothes stained by blood that matched that of the deceased.

23. Furthermore, under the doctrine of recent possession, the appellants’ conviction was also well founded. The mobile phone that was in the possession of the 2nd appellant was positively identified as belonging to the deceased. Any discrepancy in its description is a matter of fact, and as earlier stated, since the two courts below established that the mobile phone indeed belonged to the deceased, we have no jurisdiction to deal with the issue of its description.

24. The charge that was preferred against the appellants was not duplex. The appellants were not charged with murder. The deceased died in circumstances that related to the violent robbery. We therefore summarily reject this ground of appeal.

25. Regarding compliance with section 200 of the Criminal Procedure Code, the record shows that the trial commenced before S.N. Ndegwa, Principal Magistrate, and when D.M. Ochenja,Senior Principal Magistratetook over, the 1st appellant, personally told the trial court that he wanted the matter to proceed from where it had reached. The 2nd and 3rd appellants through their advocate indicated that they also desired that the hearing proceeds from where the first trial magistrate had reached.

26. Ochenja, SPM, completed the trial and prepared the judgment, which was however delivered on her behalf by Teresia Ngugi, SPM, who also passed the sentence after considering the appellants’ mitigation. In our view, that did not occasion any miscarriage of justice. We therefore dismiss that ground of appeal.

27. Regarding the appellants’ defences, we are satisfied that the two courts below considered their defences and rightly rejected the same. The first court properly analysed the evidence that was tendered before the trial court and arrived at its own conclusion, which was in tandem with that of the trial court.

28. Lastly, on the issue of sentence, at the time of the appellants’ conviction and sentence, death sentence was the only prescribed punishment which courts had to pass upon conviction for robbery with violence. Neither the trial court nor the first appellate court could exercise any discretion in passing sentence in respect of any accused person convicted of robbery with violence.

29. However, in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court held that the mandatory nature of the death sentence is unconstitutional in that it denies courts of their mandate to exercise judicial discretion by considering any mitigating factors proffered.

30. In this appeal, although the trial court heard the appellants’ mitigating factors, its hands were tied, it had to pass the death sentence. For that reason alone, we are inclined to set aside the death sentence, which we hereby do, and substitute therefor sentence to imprisonment to a term of thirty years with effect from 6th December 2013 when the initial sentence was passed.

Dated and delivered at Nairobi this 29thday of January, 2021.

D. K. MUSINGA

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JUDGE OF APPEAL

J. MOHAMMED

………………………..

JUDGE OF APPEAL

S. OLE KANTAI

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JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR