[2017] KEHC 1146 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 59 OF 2016

BENARD WAMBUA KISILU................................APPELLANT

VERSUS

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

(Appeal against the conviction and sentence of Hon. M.K. Mwangi (PM) delivered on 30th October, 2015 in Machakos Chief Magistrates Court Criminal Case No. 393 of 2011. )

JUDGEMENT

1. The Appellant, Benard Wambua Kisilu, together with others were charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. The particulars were that on the night of 23rd and 24th of February, 2011 at [particulars withheld] in Machakos District within Eastern Province, jointly while armed with dangerous weapons namely metal bars and knives robbed Eric Nzoka Mutinda of one microscope, one electronic weighing machine, ten stop watches, a mobile phone make Vodafone 125, cash KShs. 6,770/- all valued at KShs. 66,885/- and at or immediately before or immediately after the time of such robbery used actual violence to the said Eric Nzoka Mutinda. He was faced with three more counts of robbery with violence.

2. The Appellant pleaded not guilty to the charges and he was put to trial. The prosecution called a total of eleven (11) witnesses. The facts as they emerged from the evidence were that [particulars withheld] School was invaded by robbers. P L W (PW1) stated that the matron was called to take the watchman who had been bitten by a snake to hospital. When the door was opened Ndivo the cook was found tied and the robbers ordered the girls who had offered to assist the matron back to the dormitory. She saw 4 thugs who took her KShs. 650/- and a bag. The said money was removed from her box. The said thugs threatened to rape the girls. PW1 said she got the physical appearance of one of them who wore a police cap and was holding a rungu. She stated that he was illuminated by the torch he was holding.

3. Kioko Nzuve (PW2) was informed of the robbery by the school grounds man Nicholas Munguti. He then called the OCS Kyumbi police post. When he got to the school he found that the dormitory had been broken into.

4. John Kyalo (PW3) was informed of the robbery by PW2. On arrival at the school he found police officers. He noticed that his office had been broken into and a microscope, one weighing machine, 10 stop watches, phone and KShs. 6,670/- had been stolen.

5. Onesmus Mwololo (PW4) was on the material day woken up by Eric Nzoka saying he had been bitten by a snake. When he opened the door to check, he saw Erick held by men who threw him into PW4’s room. PW4 was beaten up by the men then frog matched to the Principal’s office but the door was locked. He took them to the matron’s house. The men assaulted her.

6. Chief Inspector Charles Theuri (PW5) conducted an identification parade in respect of the Appellant. He stated that he paraded 8 people including the appellant. That the appellant was identified by Nzioka Mutinda, Lydia Malaku Protus, Florence Murage, Gloria Sawe and Kalekwa Paul. He produced the parade forms as P. Exhibit 2.

7. Corporal James Mwangi (PW6) confirmed having received a report of the robbery at Kyumbi Police Station. He stated that on visiting the school he found the school guard tied and was under a desk. That the said watchman stated that he could identify the thugs who he used to see at Kyumbi but did not know their names.

8. Nicholas Ngola Mungiri (PW7) stated that he heard the guard, Erick calling the cook alleging that he had been bitten by a snake. The door was opened and one of the robbers ordered them, Ndivo, Kilonzo and himself, to remain silent. The men entered and bound their hands with ropes. He stated that he was unable to identify the robbers since they were using bright torches.

9. Erick Mutinda Nzoka (PW8) was in form 3 class when he saw light from the window. He got out and saw a gang of 6 people who were armed with sticks and pangas. The security light for the class room was on at the time. They held him and bound him in ropes and threw him into a class room. One of them whose voice he claimed to recognize told him he would kill him after the operation. They later came back and ordered that he takes them to the Principal’s office. That the robbers demanded to be taken to the place Mwololo and other grounds men were. He was told to say that he had been bitten by a snake. PW8 called Mwololo who opened the door. The robbers demanded to be taken to the girls’ dormitory. The robbers beat up PW8 and the appellant who he stated he saw clearly urinated on him. He stated that he recognized the appellant who he had known for about 3 months. That the appellant leaves in gaza area. He stated that they wore dark coats and black caps.

10. Geoffrey Mutinda Ndeto (PW9) stated that he heard the night guard calling Ndivo to open for him. Ndivo opened and immediately torches were shone on them. He saw the night guard bound with ropes and he was left with them. The cook and the guard were told to go and wake up the matron. He stated that the robbers stole KShs. 250/- from him. He however stated that he did not identify any of the robbers.

11. Dr. Judy Kimuyu (PW10) confirmed that Erick Mutinda had suffered soft tissue injuries on both hands and right leg below the knee while Dr. John Mutunga (PW11) confirmed Mwololo’s injuries as cut wound on the right cheek and blunt injury at scapular bone.

12. The Appellant was put on his defence to which he gave sworn statement. He denied robbing any of the four complainants. He stated that he knows nothing about the robbery since he was at his house on the material day.

13. The trial court found the appellant guilty and convicted him and sentenced him to suffer death. Aggrieved by the said conviction and sentence, the appellant filed this appeal on the following grounds:

a) That he was convicted on incomplete evidence of eyewitness.

b) That he was convicted on inconsistent and contradictory evidence.

c) That the trial magistrate failed to analyze evidence.

d) That the identification was insufficient.

e) That the trial magistrate failed to consider his defence.

14. It was the appellant’s submission that PW1’s evidence should have been expunged since she was stood down during cross examination for want of time and was never recalled. The appellant placed reliance on Juma and Others v. Attorney General (2003) eKLR and Republic v. Daniel Chege Magotho (2014) eKLR. He further relied on section 302 of the Criminal Procedure Code. The appellant submitted that there were inconsistencies in the charge sheet as to the dates i.e. that the offence was booked after his arrest. Further that while the it was stated that identification parade was conducted on 3rd March, 2011, it is indicated in the charge sheet that he was arrested on 7th March, 2011. He further argued that from PW8’s evidence that he was known to him before, it was clear that he had a vendetta against the appellant. That while PW8 stated that Mwololo said he recognized the appellant, Mwololo (PW4) stated that he did not recognize the appellant. He submitted that the trial magistrate failed to properly analyze and consider his evidence and that he was not identified to the required standards.

15. The respondent on the other hand submitted that the appellant failed to apply to have PW1 recalled an indication that he was not prejudiced by the failure to recall the said witness. That the contradictions complained of did not prejudice the appellant since the appellant had an opportunity to cross examine the witnesses on the veracity of such evidence. On identification, it was submitted that PW8 testified that he was able to recognize the appellant since he was a person well known to him for duration of about 3 months. That on the material day, PW 8 with the help of the security light from the classroom recognized the appellant. It was finally submitted that the trial magistrate considered the entire evidence of the prosecution in totality and weighed it against that of the appellant and made a finding supported with reasons.

16. In considering this appeal, this court is minded of its duty as a first appellate court. (Njoroge v. Republic [1987] KLR 19). The issues falling for determination in my view are:

a) Whether or not the failure to recall PW1 prejudiced the appellant.

b) Whether or not the prosecution evidence was inconsistent.

c) Whether or not the appellant was positively identified.

d) Whether or not the trial magistrate failed to analyze and consider the evidence of the appellant.

17. Section 302 of the Criminal Procedure Code provides that:

“The witnesses called for the prosecution shall be subject to cross examination by the accused person or his advocate, and to re- examination by the advocate for the prosecution.”

18. It follows therefore that an accused person must be given an opportunity to cross examine the prosecution witnesses. Such opportunity was not given to the appellant herein. It is however note worthy that the said failure is not fatal since PW1 was not a key witness. On the alleged inconsistencies, the same do not shake the prosecution case since they do not go to the material matter. The witnesses testimonies are not watered down by the said inconsistencies. The evidence of the prosecution were in fact consistent as to the sequence of events of the material day. On identification, PW8 was clear that the robbers were initially illuminated by the security light. He recognized and positively identified the appellant having known him for about 3 months. From the prosecution evidence, it is clear that PW8 spent a considerable time with the robbers sufficient enough for such recognition. I find that the appellant was positively identified. It was further clear from the judgment that the trial magistrate considered the defence and found it not plausible. Weighing the prosecution case and that of the appellant, the appellant’s evidence did not shake the prosecution case at all. In the circumstances, I find no merit in this ground of appeal. The trial court’s conviction and sentence is hereby upheld.

19. On the second ground, the appellant contended that the evidence on identification did not meet the threshold to sustain a conviction. It was submitted that PW2 was required to have given the description of the assailant while making the report. On this aspect, the appellant cited John Kibii Langat v. Republic (2005) eKLR and Kipwenen Arap Mosonik v. Republic (1980) eKLR where the court so held. It was contended that PW2 failed to elaborate the appellant’s physical features. That from the foregoing, it is clear that identification of the appellant was not satisfactory. He submitted that the identification parade was conducted unprocedurally. That PW2 had seen him before the identification parade thereby identified him without any difficulty. The respondent on the other hand was of the opinion that the appellant was positively identified considering that the robbery occurred when there was sufficient lighting.

20. On identification, I am guided by the landmark case of R v. Turnbull and others (1976) 3 All ER 549, which has been widely adopted by our courts. Lord Widgery C.J. had this to say in regard to identification:

“First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation" At what distance" In what light" Was the observation impeded in any way, as for example by passing traffic or a press of people" Had the witness ever seen the accused before" How often" If only occasionally, had he any special reason for remembering the accused" How long elapsed between original observation and the subsequent identification to the police" Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance"(Emphasis mine)

In this case, PW1 and PW.8 were said to have been robbed during the incident. They had the opportunity to converse with the robbers before they were attacked. They were in fact able to describe the appellant’s dressing. Although the appellant argues that the witnesses saw him just before the identification parade, I do not find the argument to hold water since the officer was particular that he first arranged the parade before he called the witnesses. Even if am to be found wrong on that, PW1 and PW.8 were categorical that they could identify their assailant. For the aforesaid reasons coupled with the reasoning in Nelson Julius Irungu v. Republic, Criminal Appeal No. 24 of 2008,that:

“As this Court has stated before, when it comes to credibility of witnesses an allowance must be given that the trial court was in a better position to make that judgment as it saw and heard the witnesses.”

I have no reason to interfere with the trial court’s finding on identification.

The appellant further argued that the identification parade was not conducted in the prescribed manner. The court in Gabriel Kamau Njoroge v. Republic (1982-1988) 1KAR 1134,this Court observed:-

“A dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.”

It is clear from the evidence of PW7 that PW1 gave him the description of the appellant, although he termed it as identification in his evidence, before he conducted a parade. PW.1 had been seeing him in the area three months prior to the incident. In my view therefore the parade was properly conducted. That ground also fails.

21. As regards the issue raised by the Appellant that the trial court did not consider his defence, it is noted from the judgment of the trial Magistrate that indeed the defence evidence was duly considered but found to have not shaken that of the prosecution. Indeed the evidence of PW.1 and PW.8 was quite strong on the Appellant’s involvement in the robbery as the two witnesses clearly saw him and were unshaken in their evidence before the trial court. The Appellant’s alibi was properly considered and rejected by the trial court. It must be pointed out that the Appellant did not even issue the alibi warning before the trial kicked off and he raised it at the tail end of the proceedings. The Appellant having been placed at the scene of the crime by the evidence of PW.1 and PW.8, I find this weakened his alibi defence. I find that the trial court properly rejected the Appellant’s defence evidence as the Prosecution’s case had been proved against him beyond any reasonable doubt.

22. In the result it is the finding of this court that the Appellant’s appeal herein lacks merit. The same is ordered dismissed. The conviction and sentence of the lower court is hereby upheld.

It is so ordered.

Dated and delivered at Machakos this 5th day of December, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

..................................for the Appellant

..................................for the Respondent

..................................Court assistant