[2020] KEHC 4470 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

CRIMINAL APPEAL NO. 9 OF 2019

BONIFACE NGETICH.......APPELLANT

-VERSUS-

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

JUDGMENT

1. The appellant was charged in the magistrate’s court at Bomet with robbery with violence Contrary to Section 296(2) of the Penal Code. The particulars of the offence being that on 9th April 2017 at Kapkesosio Location within Bomet County jointly with another not before court while armed with a dangerous weapon namely an axe, robbed Charles Langat of a motor cycle Reg. No. KMEB 382Q Boxer Bajaj black in colour valued at Kshs.91,000/= and before the time of such robbery wounded the said Charles Langat.

2. He denied the charge and after a full trial he was convicted of the offence and sentenced to 15 years imprisonment on the authority of the Supreme Court decision – commonly called the MURUATETU case, which stated that death penalty was not the mandatory but the maximum sentence.

3. Being dissatisfied, he has now come to this court on appeal. He later filed amended grounds as follows:-

1. The learned magistrate erred in law and facts by relying on the evidence of prosecution witnesses which was not corroborative.

2. The trial magistrate erred in convicting him on a defective charge.

3. The magistrate erred in finding that the prosecution proved their case without considering that investigations were shallow.

4. The learned magistrate erred by rejecting his alibi defence without any cogent reason.

4. The appellant also filed written submissions which I have perused and considered. At the hearing of the appeal, the appellant relied on his written submissions and elected not to make oral submissions.

5. Mr. Murithi –learned Principal Prosecution’s Counsel opposed the appeal and submitted the appellant was seen by the complainant PW1 earlier in the day and was then recognized by him that night in the electricity light, when the appellant and another asked the complainant to take them home on a motor bike. According to counsel, PW2 corroborated the evidence of PW1 in all material terms and the appellant was arrested immediately by the public. In addition, Counsel submitted, PW4 took the complainant to hospital which proved the fact that complainant had been injured in the alleged robbery.

6. This is a first appeal. As a first appellate court, I am duty bound to re-evaluate the evidence on record and come to my own independent conclusions and inferences. See OKENO –VS- REPUBLIC [1972] EA 32.

7. I have re-evaluated the evidence on record and considered the grounds of appeal, as well as the submissions of the appellant and those of the Principal Prosecuting Counsel. I will start with the technical ground of a defective charge. The appellant has stated that the charge was defective because the charge sheet refers to the motor cycle as KMEB 382Q, while the magistrate in the judgment refers to the KMEB 383Q. In my view that was just an error on the typed record. Even if that error emanated from the handwritten record, which in this case it did not, it would just have been an error on the face of the record which would not make the charge sheet defective. I dismiss that ground.

8. The second complaint of the appellant is that the magistrate erred in relying on evidence of prosecution witnesses which was not corroborative. Having perused the evidence of prosecution witnesses on record, I find that the evidence of the prosecution witnesses especially PW1 Charles Langat the complainant, and PW3 Peter Kiplangat - both motor cycle riders was corroborative in as how as the hire of the motor cycle of PW1 by two people was concerned that night. PW4 Shadrack Kiprotich Bett also a motor cycle rider, took the complainant PW1 to hospital that night, which supports the attack and injury of PW 1. It cannot thus be said that the evidence of prosecution witnesses was not corroborative.

9. I now turn to the ground on proof of the charge beyond reasonable doubt. In my view, this ground has substance, mainly because of identification of the culprit. PW1 the complainant stated in evidence that he had seen the appellant earlier during the day. He stated that he saw him after arrest by the police and identified him. PW3 also said that he identified the appellant. It is of note however, that though the evidence of the prosecution was that there was adequate electric light at the point where PW1’s motor cycle was hired by two people on introduction by PW3 who did not have adequate fuel, – none of these two witnesses was recorded as having stated to anybody that they could identify any of the two culprits. None of them described the culprits appearance to anybody before arrest.

10. Further the appellant was arrested after some people thought that the cap and watch found at the scene of robbery belonged to him. A cap and a watch are common user items, and can belong and be won by many people. Nobody gave any special marks on those two items to connect them to the appellant.

11. Again, thought the Prosecution Counsel has submitted that the appellant was arrested immediately after the incident, that is not the evidence on record. The incident occurred on 9th April, 2017, while arrest was on 11th June, 2017 – more than two months later as per the evidence of PW7 PC Anderson Kimeto the Investigating Officer. On arrest also, no identification parade was conducted. In those circumstances, the only thing that connects the appellant to the robbery was ownership of the cap and watch, which were not proved to belong to him. On that ground, alone, the appellant should have been given the benefit of doubt by the trial court. The appeal will thus succeed on this account.

12. On the ground that the trial court did not consider the defence of alibi, that is not the position. The appellant did not raise a defence of alibi. Instead of talking about what happened on the date of the alleged incident, he testified about what happened on the date of arrest. The trial court concluded that the appellant was positively identified and thus dismissed the defence, which the trial court was entitled to do. However, I have found on re-evaluation of the evidence that the appellant was not positively identified and the appeal, will succeed on that ground. The ground that the magistrate did not consider the appellant’s defence is thus dismissed.

13. To conclude, the appeal is allowed on the ground that the appellant was not positively identified as one of the two robbers. I thus allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty forthwith unless otherwise lawfully held.

Dated and delivered at Bomet this 3rd March 2020.

GEORGE DULU

JUDGE

3/3/2020