[2017] KECA 737 (KLR)

IN THE COURT OF APPEAL

MOMBASA

(CORAM: KOOME, OUKO & M’INOTI, JJ.A)

CRIMINAL APPEAL NO. 4 OF 2013

BETWEEN

BORRIS KEN SOLOMON …………………………………… APPELLANT

AND

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

(An appeal from the Judgment of the High Court of Kenya at Mombasa, (Odero &Muya, JJ.) dated 16th April, 2013

in

H.C.CRA. NO. 8 OF 2009)

*********

JUDGMENT OF THE COURT

The appellant's first appeal before the High Court having been dismissed, he now comes before us on a second appeal contending through his counsel, Miss. Otieno that,that court failed to re-evaluate the evidence; that had it done so it would have found that the key witnesses were not truthful; that the evidence relied upon by the trial court to convict him was inconsistent and contradictory;that evidence was full of gaps; that the evidence of identification was not free from errors as the robbery took place at night; and that the brightness and proximity of the alleged source of light was not established.

Although by the dint of section 361 of the Criminal Procedure Act the Court's jurisdiction on second appeals is limited only to matters of law, as a practice, the facts upon which the charge was tried ought always to be outlined so as to put the appeal into its proper perspective, for facts are the building blocks in resolving any dispute.

Before the trial court, the prosecution presented evidence to show that on the wee hours of 2ndJune, 2008, Joseph Muthiani, PW1was, together with another man called David, guarding the residence of Recho Masia, PW2, who had traveled to Nairobi. At about 4. 30 am PW1 noticed two men in the vicinity of the property they were guarding. One of them went directly to where PW1 was, while the second man came from behind him. He identified the first person as the appellant, who he told the court he had known for 3 days before the night in question. While the second man was armed with a panga, the appellant had bows and arrows. The witness explained the role played by each one and specifically stated that the appellant threatened to shoot him with the arrow; that the appellant placed the bows and arrows on the ground in order to tie the witness’ feet. Thereafter the robbers covered him with a lessoand embarked on the vandalization of PW2’s motor vehicle which was parked outside the house. In the end, the robbers took away three wheels complete with tyres.

As fate would have it, Mary Nafula Wekesa, PW4 happened to be returning to her house in the neighborhood from a club at the material time. Upon seeing what was going on at the scene, out of fear she changed her route. But again she was not very lucky as the alternative route she had chosen was the same one the robbers were using to escape from the scene after PW1 raised an alarm. As the robbers approached, the witness at down away from their path to avoid being noticed. From that position she was able to see three men each carrying a wheel. She recognized all of them, as they were known to her before this night. Apart from her evidence that each of three robbers were carrying a wheel, the witness stated that, in addition the appellant was carrying a piece of metal.

The robbery was reported to the police and investigations commenced. Because PW1 and PW2 gave the name of the appellant, it did not take the police long before he was arrested and charged with robbery with violence contrary to section 296(2) of the Penal Code. His accomplices were however never traced and the tyres were similarly not recovered.

At the close of the prosecution case and upon being required to make his defence, the appellant denied involvement in the robbery, denied that he was known to PW1 and PW2 and insisted that on the day of the alleged robbery he was hired by two police officers to drive them in his tuktukto Makupa Police Station at an agreed fare of Kshs.100; that upon reaching the police station, the officers refused to honour the agreed fare and offered him only Kshs. 50 which he declined to accept. Infuriated, the officers threw him in the cells only to return later with a demand for a bribe of Kshs. 15,000. When he failed to produce the amount he was charged with the offence he knew nothing about.

The trial court was persuaded from the totality of that evidence that the appellant was recognized not by one but two witnesses; and that there was sufficient light to enable the two to see and recognize the appellant. Being of that mind, the learned trial magistrate found the appellant guilty and upon convicting him sentenced him to suffer death.

The appellant's appeal to the High Court, as we have just explained above was rejected and he now comes before us on the grounds enumerated earlier in this judgment.

We reiterate that we are satisfied that, from the grounds proffered, our jurisdiction to entertain this appeal has been properly invoked. The contradictions and inconsistencies identified and cited by Miss. Otieno are in our view and with respect to her, insignificant. They were inconsequential and would not alter the ultimate outcome of the trial. We similarly do not think there is any substance in the argument that PW1 as the watchman ought to have known the full registration number of the car whose wheels were stolen. PW1 was only able to recall the first registration letters, KAY but not the numbers. The owner,PW2 as well as the police officers who visited the scene filled that gap by providing the full registration number of the car.

The only significant issue in this appeal is whether, in the circumstances and conditions obtaining at the time of the robbery, the witnesses could nonetheless identify and recognize the appellant as part of the gang that committed the act of robbery on the night in question.

Invariably in the majority of criminal trials the question of identification will be central and sometimes the only issue. Depending on how it is resolved a conviction based on a flawed identification can have devastating consequences. This fear was recognized way back in 1765 in the famous Blackstone’s ratio, so named after William Blackstone, a leading English jurist, who famously expressed thus;“better that ten guilty persons escape than one innocent suffer.” The courts are permitted to err on the side of innocence. This has been emphasized by a series of judicial decisions that warn of the dangers of basing a conviction on a contested identification evidence. The time-honoured dictum was developed as the Turnbull Guidelines,or directions, by the English Court of Appeal following its decision inthelocusclassicuscaseof ReginaV Turnbull& Others[1977]QB 224. The nine guidelines on identification, laid down by Lord Widgery were adopted in Reuben Taabu & Others vs.Republic Criminal Appeal No. 208,209 and 480 of 1978.

“How long did the witness have the accused under observation? At what distance? In whatlight? Was the observation impeded in any way, as for example by passing traffic or press of people?

Had the witnesses ever seen the accused before? How often? If occasionally, had he any specific reason for remembering the accused? How long elapsed (sic) between the original observation and the subsequent identification to the police?

Was there any material discrepancy between the description of the accused givento the police by witnesses when first seen by them and his actual appearance?"

In Maitanyi V R(1986)KLR 198 the rationale for these requirements was explained and the role of the trial courts defined as follows:

“That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and it position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by, there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of senior magistrates trying cases of capital robbery to make these enquiries themselves.”

Apart from the fact that PW1 had known the appellant for three days before the night of the robbery, and in view of the considerable period of time the robbery took, including the fact that PW1 and the appellant even spoke to each other at close proximity, the existence of electricity light at the scene,coupled with the supporting evidence of PW2, we, like the two courts below, are satisfied that the evidence of recognition was overwhelming. Both witnesses satisfied the trial and the first appellate courts, and the two court arrived at concurrent conclusion of fact that the witnesses were aided in the recognition of the appellant by powerful light emitted by electricity.

The learned Judges (Odero and Muya, JJ.) re-evaluated the evidence, analyzed it and guided by Dennis Otieno Obuya V RCivil Appeal No. 172 of 2006 (UR) and Anjononi & Others V R (1980)KLR 59 came to the correct decision. The defence was likewise considered and properly rejected as it was effectively displaced by the overwhelming evidence that placed the appellant at the scene of the robbery. No material has be placed before us to warrant our interference with that decision.

The appeal for all these reasons must fail. We accordingly dismiss it.

Dated and delivered at Mombasa this 17th day of February, 2017

M. K. KOOME

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JUDGE OF APPEAL

W. OUKO

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JUDGE OF APPEAL

K. M’INOTI

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JUDGE OF APPEAL

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

DEPUTY REGISTRAR