[2008] KECA 18 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT KISUMU

CRIMINAL APPEAL 140 OF 2008

BENJAMIN OBAT AYOKI……………........………………….APPELLANT

AND

REPUBLIC……….....…….…………………………………..RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Kisumu (Mwera & Mugo, JJ) dated 18/12/2007

in

H.C.CR.A. NO. 79 OF 2005)

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JUDGMENT OF THE COURT

This is a second appeal. The appellant BENJAMIN OBAT AYOKI, was originally charged before the Senior Resident Magistrate’s Court at Bondo with the offence of robbery contrary to section 296(1) of the Penal Code. He pleaded not guilty to that charge on 3rd December, 2004 but apparently after P3 form was received by the prosecution, that charge was substituted with a charge of Robbery with violence contrary to section 296(2) of the Penal Code. The particulars of that charge read:-

“On the 28th day of November, 2004 at Masala sub-location, East Uyoma location, Bondo District within Nyanza Province, jointly with others not before court, robbed CRISPO ALUOCH OIKO of cash money Kshs.3,000/= and at or immediately before or immediately after the time of said robbery used personal violence to the said CRISPO ALUOCH OIKO.”

He again pleaded not guilty to the substituted charge. After full hearing, the learned Senior Resident Magistrate (S.N. Mbungi) found him guilty of the charge, convicted him and sentenced him to the mandatory death sentence.

He was not satisfied with the conviction and sentence. He appealed against both to the superior court. The superior court (Mwera and Mugo, JJ) dismissed his appeal stating inter alia as follows:-

“We did not find that the appellant’s unsworn statement in defence was such as to raise a doubt against the evidence of the complainant, of which the learned trial magistrate warned himself on a single identifying witness. He was absolutely right to do so. He convicted the appellant on sufficient evidence adduced. The learned trial magistrate believed PW1 and we tend the same way even as we did not have the advantage of observing him in the witness box. His evidence was credible. Identification was by recognition. There was a ground in the petition that the case against the appellant was not proved beyond a reasonable doubt. As we have already said we do not agree. Or that the burden of proof was shifted onto the appellant, we did not perceive such a thing either on the evidence or the learned trial magistrate’s judgment. In sum this appeal is dismissed in its entirety.”

The appellant is still not satisfied with that decision of the learned Judges of the superior court and hence this appeal premised mainly on two grounds filed by the appellant in person in his Memorandum of Appeal filed on 29th September, 2008 and one additional ground in a supplementary memorandum of appeal filed by the appellant’s advocate dated 24th November, 2008 and filed on 26th November, 2008. The two grounds filed by the appellant in person were in brief that the first appellate court erred in dismissing the appeal on grounds that the complainant identified the appellant through recognition notwithstanding, that the circumstances at the time of the incident were not favourable for positive identification and thus credibility of the complainant was impaired and so he could not have recognized those who attacked him; that as the identifying witness was a single witness there was need for corroboration of his evidence before a conviction could be based on it and without considering that a witness may be honest but mistaken in his evidence and secondly that the learned Judges of the superior court failed to give proper consideration to the defence advanced by the appellant at his trial. The one ground of appeal on the supplementary Memorandum of Appeal states as follows:-

“1. That the learned Judges of the superior court erred in law by failing to subject the entire evidence to a fresh exhaustive scrutiny.”

The complainant Crispin Oluoch (PW1) is a farmer in East Uyoma location of what was then Bondo District. On Sunday 28th November, 2004 at about 7. 30 p.m. he was on his way home riding a bicycle. When he reached near a water tank at Ruma Market, he met a group of about six to seven men. He recognized the appellant as among them. The appellant allegedly went in front of his bicycle. The witness maintained in his evidence that he was able to see the appellant very well. The appellant was dressed in a white shirt. The appellant got hold of the bicycle frame while another thug held the passenger seat of the bicycle. The complainant fell down on thorns which pricked him. The appellant held him on his neck and tried to choke him. The complainant kicked the appellant with his leg and the appellant fell down. The complainant stood up and shouted the appellant’s name saying “Obat why do you want to kill me?” The appellant did not answer immediately. When the appellant stood up he (the appellant) loudly exclaimed “kumbe huyu mzee anatujua!”. The appellant and other attackers then ran away. However when the complainant checked his pocket he realized that his Kshs.3,000/- was missing. The complainant went home but next morning he was in great pain as thorns had pricked him and some had to be removed from his body by his children. He made a report to the police at Aram Police Post nearby. PC Sitienei (PW2) who was on duty at the Police Post on 29th November, 2004 at about 2. 00 p.m. received the report of the robbery from the complainant. The complainant gave him the name of the appellant and he immediately started searching for the appellant. He arrested the appellant that day within the shopping centre where the appellant was residing. P.C. Sitienei knew the appellant and so he arrested the appellant in the appellant’s house. The appellant was taken to the Police Post where he met the complainant. The complainant was treated and later given P3 a form which was filled by William Jaffer (PW3) a Clinical Officer at Bondo District Hospital, who upon examining him found that the complainant needed an operation to remove thorns which had lodged in his body. The degree of injuries was classified as harm. The appellant was taken to Bondo Police station and later charged in court as stated herein above. When put on his defence, the appellant stated:-

“I am called Benjamin Obat. I repair watches. I did not commit the offence. On the day I was arrested someone came to my house and told me that I was wanted at Akala Police Post. When I went the person locked me in cells and I was later charged with this offence. That is all.”

The above are the facts that were before the subordinate court, and upon which that court convicted the appellant. In convicting him, that court stated in pertinent part as follows:-

“The distance of closeness was favourable for positive recognition though it was a bit dark. The accused approached the complainant from the front. He held the frame of the bicycle the complainant had. This gave the complainant humble(sic) time to identify his attacker. The accused and his colleague ran away after the complaint (sic) called out his name. I find there is no possibility of mistaken identification. The complainant when he rose from where he had been filled (sic) and on checking his pockets he found his Kshs.3000 missing. So I find he was robbed of his money by his attackers and in the process personal violence was used on him and it is shown by his testimony and P3 form produced by PW3. What I have here is identification by single witness. I have analysed the circumstances prevailing at that time. I have also warned myself of the dangers. Whenever in relying in such (sic) evidence and have convinced myself actually the accused was one of those who robbed the complainant. His defence is just a mere denial. I do dismiss it as such. I will therefore find the prosecution has proved its case beyond reasonable doubt and I find him guilty accordingly convict him as charged. ”

On appeal, the superior court analyzed the evidence a fresh and after evaluating it as is required by law came to the same conclusion part of which we have reproduced hereinabove.

Before us, Mr. Onalo, the learned counsel for the appellant raised two main issues of law. These were, first that there was no proof that personal violence was meted out on the complainant and that being so, he submitted that the charge of robbery with violence under Section 296(2) of the Penal Code could not stand. He referred us to an earlier charge we have alluded to hereinabove and submitted that the substituted charge was an afterthought. The second issue he raised was that it was not proper to rely on the evidence of the complainant, to convict the appellant as that was evidence of identification on recognition by the appellant whereas the circumstances obtaining were not conclusive for proper recognition of the appellant. Mr. Musau the learned Senior Principal State Counsel in supporting the conviction and sentence submitted that as this was a second appeal, only matters of law could be considered as there were concurrent findings on matters of fact. He stated that the prosecution never relied on the infliction of violence upon the complainant, as there were other ingredients of the charge proved the proof of which were sufficient for a conviction.

We have considered the rival submissions, the record, the judgment of the Senior Resident Magistrate and that of the superior court, as well as the law. We will start with the complaint that as no violence was meted out on the complainant, the charge was not proved to the standard required in law and so conviction should not have been entered against the appellant. First, on perusal of the record, it is clear and it was never disputed that the attackers knocked the complainant down on thorns; and on this aspect the complainant says:-

“They felled me down. The accused held me on my neck. He tried to choke me.”

To knock one down when one is not consenting requires force and violence must be used to accomplish it, and holding one by his neck and attempting to choke him is meting out violence to the victim. We have no doubt that these activities constituted personal violence upon the complainant. In any event, even if no personal violence was used upon the complainant, that alone would not have reduced the charge to a lesser offence. Use of violence is only one of the ingredients of the offence of robbery with violence. There are other ingredients each of which would suffice as proof of the charge under section 296(2). Section 296(1)and (2) state as follows:-

“296(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

The above provision makes it clear that the ingredients that the court is required to look into for proof of the offence of robbery with violence contrary to Section 296(2) are:-

“(a) If at the time of the offence, the offender is armed with any dangerous or offensive weapon or instrument or

(b) If at the time of the offence the offender is in company with one or more other person or persons or

(c) If, at, or immediately before or immediately after the time of the robbery he wounds, beats, strikes or uses any other personal violence to the victim.”

Each of the above ingredients, if proved, is enough in itself as proof of the offence of robbery under Section 296(2)and as this Court has said over and over again, there is no law that requires that all those ingredients must be proved so as to sustain a charge of robbery with violence contrary to section 296(2) of the Penal Code. As we have stated, above, in this case there was use of personal violence to the complainant by knocking him down, and holding his neck in an attempt to choke him. Further, the attackers were more than one person. We see no merit in this complaint.

The other main point raised is that the identification or recognition of the appellant could not be relied on as it was by a single witness i.e. the complainant, under difficult circumstances. The law is now well settled and that is that a fact may be proved by the testimony of a single witness but there is need in law for the court to exercise greater care before convicting on such evidence particularly if the circumstances obtaining were not favourable for proper identification or recognition. In the case of ABDHALLAH BIN WENDO V R (1953) 20 EACA 166at page1688. The predecessor to this Court stated as follows:-

“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of a single witness, can safely be accepted as free from possibility of error”

The sentiments expressed in that case of ABDALLA BIN WENDO V R. (supra) were echoed in the case of RORIA V REPUBLIC [1967] EA 583 where the court stated:-

“A conviction resting entirely on identity invariably causes a degree of uneasiness, and as Lord Gardner, L.C. said recently in the House of Lords in the course of a debate on section 4 of the Criminal Appeal Act 1966 of the United Kingdom which is designated to widen the power of the court to interfere with verdicts:

“There may be a case in which identity is in question, and if any innocent people are convicted today I should think that in nine cases out of ten if there are as many as ten-it is on a question of identity.”

The danger is, of course, greater when the only evidence against an accused person is identification by one witness and although no one would suggest that a conviction used on such identification should never be upheld it is the duty of this Court to satisfy itself that in all circumstances it is safe to act on such identification.”(Underlying supplied).

The above are decisions on identification by a single witness under difficult circumstances. In the case before us, the complainant claimed in his evidence that he recognized the appellant at the time of the attack on him. In the case of ANJONONI V. REPUBLIC (1980) KLR 59, this Court stated:-

“The proper identification of robbers is always an important issue in a case of capital robbery-----

This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We do draw attention to the distinction between recognition and identification in SIRO OLE GITEYA VS. THE REPUBLIC (unreported).”

However, even though more assuring, and more reliable, even in cases of recognition mistakes can be made and the trial courts are still in law, enjoined to exercise care and caution before convicting a suspect on grounds of recognition particularly if the recognition is by a single witness under unfavuorable circumstances. In the case of R. V. TURNBULL (1976) 3 ALL ER 549 at page 557, Lord Widgery C.J. stated as follows:-

“Recognition may be more reliable than identification of a stranger, but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

In the case before us, the offence took place at 7. 30 pm. The learned magistrate who heard facts of the case and was better placed to decide on the same facts and saw demeanour of witness and of the appellant, said that it was a bit dark at the time of the incident. The complainant said the appellant approached him from the front and came so close to him that the appellant held the frame of the bicycle the complainant was riding. That must have brought the two very close to each other. As if that was not enough, the recognition of the appellant by the complainant did not end there. The complainant says the appellant, held his throat as he was down after falling on the thorns and wanted to choke him. That again brought them into physical contact. Then the complainant shouted the appellant’s name saying “Obat why do you want to kill me?” The appellant’s name is Benjamin Obat Ayoti. In response to that shouting the appellant’s name the appellant is reported to have stated: “Kumbe huyu mzee anatujua?” and they immediately thereafter ran away. We have carefully perused the record before us and in particular close examination of the complainant and appellant’s defence. The appellant did not challenge the evidence that the complainant shouted out his name. Neither did he deny the evidence that he responded by saying “kumbe huyu mzee anatujua”and they ran away. He in fact never made any comment in his defence on the events of that day. He merely talked of the date of his arrest. These aspects were carefully analysed by the trial court who was aware of the need to exercise care in relying on the evidence of a single witness on recognition of a suspect at a time when it was getting dark, and having done so he was satisfied that the appellant was properly recognized as one of the complainant’s assailants. The superior court, on first appeal likewise revisited the evidence a fresh, analysed it and evaluated it as was required by it (see the case of OKENO V R (1972) EA 32), and came to the same conclusion. On our part, having considered the law and the facts obtaining at the time the offence was committed, we find no reason to interfere with the decision of the two courts and their decisions that the appellant was properly recognized by the complainant as one of his assailants.

That being our view of the matter, and as there is no other ground of appeal upon which this appeal can be allowed, the appeal is dismissed.

DATED and DELIVERED at KISUMU this 5th day of December, 2008.

S.E.O. BOSIRE

…………………………………

JUDGE OF APPEAL

E.O. O’KUBASU

……………………………………

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR