[2004] KEHC 1774 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET.

APPELLANT SIDE

CRIMINAL APPEAL NO. 72 OF 2002

(Being an appeal against the Judgment of L.W Gitari (Mrs), Principal

Magistrate, delivered on 11th June 2002 in Eldoret Senior Principal

Magistrate’s Criminal Case No.1141 of 2001)

BENSON KAMAU MACHARIA …………………………………………….…..APPELLANT

VERSUS

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

JUDGMENT

Benson Kamau Macharia was charged with two offences of robbery with violence contrary to section 292(2) of the Penal Code, and with rape contrary to section 140 of the same Code. Having pleaded not guilty in all the three charges, the trial proceeded to a full hearing and he was convicted of all the counts and sentenced to suffer death on counts 1 and II and to life imprisonment with 20 strokes of the cane on count III. Being dissatisfied with both the convictions and sentences, he has now preferred this appeal whose grounds are mainly that, he was not identified positively, that the identification parade was not conducted in accordance with laid down regulations, that the prosecution evidence was full of contradictions and in which case he feels that the prosecution was not able to prove its case beyond reasonable doubt.

Briefly, at around 1. a.m on 16. 2.2001, as PW1 drove towards Huruma Estate in Eldoret, and while accompanied by his employee PW2, a stone was thrown at by car and it hit him on the right side of the head, and as he stopped the car, he was stabbed on the right shoulder with a knife, and was then removed from the driver’s seat and moved to the back seat of his vehicle, where he was pinned down. In the meantime, PW2 was held by the neck. The vehicle was then driven away. After some distance, he was removed from the rear seat and put in the boot of his vehicle. The vehicle was then driven away but it stopped after some time at which point PW2 was removed from the car by 2 of their assailants who led her into a wheat farm where they raped her. They forced her back to the vehicle, while naked and placed her in the boot, and drove away, but after a distance, and as the driver encountered problems with the vehicle, PW1 managed to open the boot and they both escaped, and managed to hike a lift to the police station at the Eldoret Airport. PW1 was robbed of his vehicle, a watch, jacket, a pair of shoes, an identity card and cash, while PW2 was robbed of a jacket, a pair of shoes and cash.

PW1 who had not know his assailants before then claimed that he was however able to identify the three while was being bundled in there as the light in the boot was on at the material time. And though he did not inform the police that he had been able to identify his assailants , he identified the appellant in an identification.

PW2 had not seen her assailants before then either, but she was able to see the face of one of her assailants as the car was well lit.

He was the same person who had raped her. She was also able to pick him at an identification parade. We have ascertained that, the robbery and rape did actually take place, and as the trial learned Magistrate found in her judgment, the only issue for her determination was whether it was the appellant who had perpetrated the crimes. In order for the prosecution to have proved its case beyond reasonable doubt, it was imperative that the investigating officer give a report on the results of the analysis of the finger prints found in the vehicle.

As is expected of us, we have evaluated the evidence on record, we find that the evidence of the arresting officer PW5, was not convincing in that it was his testimony that the day after receiving the reports of both PW1 and 2, and while accompanied by 4 of his colleagues , they had gone to the Municipal field where they found 2 people talking and when one saw them he was surprised. He then noticed one of the men as the appellant who informed PW5 that he had not committed any crime. PW5 then remembered the descriptions given by PW2 and arrested him at that point, yet, it is instructive to note that PW2 did not specifically described her assailants. The only description she appears to have given, was that one of their assailants was a kikuyu while the other two were Luhyas.

We form the opinion that the identification of the appellant was not and could not be said to have been positive to warrant the convictions.

We also need not re-emphasize the fact that if, as was established that PW2 was indeed suffering from gonorrhea, it was for the prosecution to prove that the appellant was also suffering from a similar ailment, yet he was not even subjected to medical examination to support the case. Needless to say the evidence of PW1 and 2 was contradictory of each other on the location from which the vehicle was recovered, and also on whether all the three robbers went to bundle PW1 in the boot of the vehicle.

According to PW2 only one went with PW1 to the boot, while the others were holding her in the boot at the second instance, while PW2 was brought to the boot, she was escorted by only 2 and not all the three. In the circumstances, at no time did PW1 see all his assailants with the aid of the boot light.

Such contradictions and glaring loopholes should have raised doubts in the mind of the trial Magistrate. We feel that the investigations in this case fell below the expected standards and as a result of which the prosecution failed its test.

We do therefore allow the appeal, quash the convictions and set aside the sentence. The appellant should be released forthwith unless he is otherwise held in lawful custody.

Dated and delivered at Eldoret this 22nd day of April 2004.

JEANNE GACHECHE

JUDGE

GEORGE DULU

JUDGE

Delivered in the presence of :-