[2022] KEHC 1459 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO. E009 OF 2021

(Being an appeal against the conviction and sentence of Hon. J Wanjala Chief Magistrate in the Principal’s

Magistrates Court at Nyahururu Criminal Case No.2673 of 2016)

CHARLES MWAI KIMANI...................APPELLANT

VERSUS

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

JUDGEMENT

1. The Appellant was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. Particulars stated that the Accused person on the 20th day of November, 2016 at Mahinga Farm Subukia Sub-County jointly with others not before court robbed Paul Mwicigi Macharia of cash Kshs. 2,000/= and at or immediately after the time of such robbery used actual violence to the said Paul Mwicigi Macharia.

2. The Appellant was convicted and sentenced to death. Being aggrieved by both the conviction and sentence meted out against him by the trial court, he filed the instant appeal on grounds that: -

i. The trial magistrate erred in law and fact by failing to appreciate the details of the first report, which indicated that the complainant had lodged a case of assault and had not mentioned of being robbed cash of Kshs. 650/- and a techno mobile phone of Kshs. 2000/-

ii. The trial magistrate erred in law and fact by failing to appreciate that the action taken on the basis of the initial report, indicated that the Appellant was to be charged with the offence of assault and nowhere was it indicated that he was to be charged with the offence of robbery with violence.

iii. The trial magistrate erred in law and fact by failing to find that the complainant did not lodge a complaint of robbery with violence.

iv. The trial magistrate erred in law and fact by failing to find that it was fatal for the initial report and the statements of the prosecution eyewitnesses to lack the details and description of the attackers and yet the complainant and the alleged eye witnesses had stated that they were able to recognize them.

v. The trial magistrate erred in law and fact by failing to find that the circumstances at the alleged time of robbery were not conducive to allow proper identification of the alleged attackers.

vi. The trial magistrate erred in law and fact by failing to find that it was fatal for the police not to have prepared an inventory report on the alleged stolen phone allegedly recovered from the Appellant, and also for the initial report of arrest of Appellant not to have indicated the recovery of the said mobile phone.

vii. The trial magistrate erred in law and fact by failing to consider the defense evidence and to find it more credible and in particular consistent with the initial report of an assault case.

viii. The trial magistrate erred in law and fact by failing to find that the prosecution witnesses were not trustworthy witnesses, as the entire evidence was full of glaring contradictions and discrepancies.

ix. The trial magistrate erred in law and fact in finding that the prosecution had proved the charge of robbery with violence beyond any reasonable doubt.

x. The trial magistrate erred in law and fact in finding a conviction that was against the weight of evidence.

xi. The trial magistrate erred in law and fact by passing a harsh sentence under the circumstances.

3. Reasons wherefore the Appellant prayed that the appeal be allowed and the conviction and sentence in Nyahururu Principal Magistrates Criminal Case No. 2673 of 2016 be set aside.

4. Briefly stated the evidence before the trial court is as follows:

5. PW1 Paul Mwicigi Macharia, the complainant testified that on 20/11/2016 at about 8. 00 p.m, he was headed home to Mahiga Farm from his place of business at Kabazi Trading Centre driving his motor vehicle Reg. No. KAA 311R make Isuzu Lorry. That he was carrying two passengers (his neighbours) who also testified in this case (PW2 and PW4).

6. He stated that while on the way, they met three boys who were walking towards the same direction and on reaching near them one of them appeared to be walking zig-zag in the middle of the road, he was drunk. The others were walking beside the road. The boy on the road stopped and PW1 stopped the lorry then the boy started walking again and he also started driving then the boy stopped without turning to where the lorry was.

7. It was his testimony that he stopped and when he looked at the two other boys who were beside the road, he realized that he knew them as neighbours. The light from the lorry was on so he could see the boys clearly. He then lowered the window glass and asked the boy who was walking on the road whether he was drunk or not but he did not reply.

8. He stated that one of the boys that he knew was Charles Mwai (Accused/ Appellant herein). That he opened the motor vehicle door and alighted because he wanted to tell the other boys to tell the one who was in the middle to leave the road, but as soon as he alighted, one of the boys hit him and he fell, he was then pulled to the front side of the lorry (on the road). The lights were still on. That the boy who was walking zig-zag on the road went into the lorry while the other 2 boys were holding him and pulled him.

9. The boy who went to the vehicle came back where he was and hit him with some iron bar on the right leg which got broken. That he became helpless and could not try to resist again. That the three boys then ran away. Before then, one of the boys had removed money from his pocket.

10. He checked for his phone and saw it on the ground. That the three boys came back again and one of them took the phone. He stated that the one who took the phone was Charles Mwai. That they left him again and stood ahead. Then they heard one say that they should not have left him alive then one of the boys hit him with a metal bar on his head and he lost consciousness. He showed the court where he was hit. There was some small depression on the head that was visible on the left side of the head. He stated that he lost consciousness for about 5 minutes and then he regained consciousness and told the two passengers to call his wife.

11. After his wife was called, she came and also other people came. By then, the attackers had run away. He stated that he was bleeding a lot from the head where he was hit. He was semi-conscious because he could still see people but not clearly. He was put on a motor cycle and was taken to Kabazi Health Center where first ad was administered. His leg was stitched when it had a bruise and then he was referred to Nakuru PGH, but the matter was reported at Kirengero Police Station before being taken to hospital. He was admitted and was treated for 3 days and was discharged due to the doctor’s strike.

12. He was taken to Mwase Hospital at Maili Kumi where he was admitted again. While at that hospital, a police officer visited him carrying a phone which he identified to be his phone that he lost on that day. He stayed at home for about four months before he went to the police station to record a statement. In May, he was still shown the phone make Tecno that he had lost. He was asked how many phone numbers he had in the phone. He stated that they were two lines and a memory card. He was told that the phone was recovered from Charles Mwai. He stated that among the three boys who attacked him he knew Charles Mwai by name. The other two boys he did not know their names but knew them by appearance. He was told that Charles Mwai had been arrested and that the other 2 boys had been killed by members of the public.

13. He stated that the person who took the phone from him was Charles Mwai – Exh.5, the Appellant herein. The iron bar that was used to hit him on the head was also recovered Exh.6. He stated that the iron bar was actually his wheel spanner that was taken from his vehicle by one of the attackers.

14. He produced a receipt for the phone Exhibit.7. The phone is make Tecno 340 Imei No.351909061066103. He stated that Accused herein is not the one who beat him but he is the one who put his hands in his pocket and took money and he is also the one who took the phone. He stated that the Accused and another boy were the ones that held him. The one who hit him on the leg and broke it is the one who was pretending to be drunk and walking zig-zag on the road who caused the plaintiff to stop the vehicle. He is the same one that entered in the vehicle and came out while holding something that later turned out to be the wheel spanner.

15. PW2 Serah Wanjah testified as an eye witness as she was inside the complainant’s vehicle when the incident of attack occurred. She stated that she saw three people at around 9. 30 p.m. That there was light from the motor vehicle head lamps. She saw the people who were beside the road but one was in the middle of the road.

16. This made the driver to slow down but the person did not leave the road. She stated that she knew that person. That they used to call him Rasta and the said Rasta was just on the road looking at the vehicle. Even when the driver (complainant) hooted, Rasta did not leave the road and the driver lowered his driver’s window pen glass. Then the other two boys who were beside the road went to the driver’s side and opened the door and pulled the complainant outside and they started beating him.

17. She stated that she saw one of the attackers taking something from behind the driver’s seat and they continued to beat the complainant. Afterwards, the three attackers left. She stated that the attackers were beating the complainant at the front of the vehicle and she could see with the help of the light from the lorry. She stated that:

“When that person took something from the vehicle, he went and hit Mwicigi (complainant) with it on the head and legs…..”

18. She went on to state that:

“Charles Mwai was one of the attackers. I knew all of them. Mwai was amongst the three persons. There was Rasta and another I heard was called Police but I knew him by appearance. They all came from our village. I saw Mwai robbing Mwicigi (PW1). Mwai was one of the two who removed Mwicigi from the vehicle. All three persons beat Mwicigi and Mwai is the one I saw put his hands into the pocket of the complainant. I cannot tell what he took from the pocket…….I did not see what he took from the pocket but I saw him put his hands into the pocket of jacket of Paul Mwicigi.

The vehicle’s lights were still on and they were beating Mwicigi in front near the lorry. After that they all went away while screaming and making noise (wakipiga nduru).”

19. She continued to state that she used her phone to call the complainant’s wife.

20. That the complainant was seated outside the lorry. He had been hit on the leg and on the head. That the complainant was sitting strangely after he was beaten and he was bleeding a lot on the head. She stated that the person who took a metal from behind the driver’s seat is the one who hit him on the head and that she clearly saw the Accused robbing the complainant.

21. Further, she testified that she heard the complainant telling his wife and mother that he knew the people that had attacked him and robbed him. That she left the scene after the complainant was taken to hospital. The next day, she was told to go to record a statement at Kirengero Police Station where the matter had been reported.

22. She stated that later she heard that the two of the suspects known as Rasta and Police had died as they were beaten by the mob. She stated that in her statement, she mentioned Rasta and Peter Karanja and Mwai. She stated that she had known the Accused persons many years before the incident because they came from the same farm.

23. PW3 No.49980 Sgt. Peter Ngenja of Bomet Police Station testified on 28/5/2019. He was the investigating officer. He stated that on 20/11/2016, he received a report from the complainant who reported that he had been robbed and beaten by thugs. The following day, 21st, he overheard the OCS being informed that the thugs that had attacked the complainant had been arrested by members of the public and were being beaten.

24. He stated that he went to where the suspects were being beaten. He was with other police officers. At the scene they found many people beating two suspects who were boys and they used force to disperse the crowd and took the two boys to hospital. That the 3rd suspect brought himself to the police station and he is the Accused person in this case.

25. He stated that the accused confessed that he was in the group that had attacked the complainant and that members of the public were looking for him house but he had managed to escape. That the Accused had therefore surrendered himself to the police. That the Accused gave him a Tecno Mobile Phone belonging to the complainant. He took the phone to the complainant where he was admitted at PGH Hospital in Nakuru and the complainant identified it. He also saw where the complainant was injured. He had been injured on the right leg which was broken and on the head.

26. He further stated that he visited the scene and recovered a wheel spanner that was used to injure the complainant because the complainant identified it as his wheel spanner that was taken from his vehicle and was used by the suspects to beat him.

27. It was his testimony that after the complainant (PW1) was discharged recorded a statement. The Accused person was charged with the present charge of robbery with violence. The complainant was issued with a P3 form that was filled on 23/3/2017 but the complainant had not completely healed that time. He also got a receipt for the phone from the complainant (Exhibit.7) dated 16/2/2016.

28. He stated that the complainant was attacked when he was driving home and found people on the road who were blocking the road and when he stopped and asked why they were blocking the road, he was attacked. That the complainant told him that he identified the Accused person among the attackers and was the one who put his hand in the complainant’s pocket and took his phone.

29. He stated that the complainant (PW1) told him that he saw the attackers by use of the head lamp of his motor vehicle because the attackers were in front and he could see them. The complainant was with two ladies in his vehicle who also saw the attackers. That the attackers were known to the complainant and the ladies as they also lived at Mahiga farm.

30. He stated that he was shown and visited the homes of the alleged suspects at Mahiga Farm. Even the Accused person comes from Mahiga Farm. The suspects who were beaten by the members of the public had been removed from their homes in Mahiga farm by members of the public. The two suspects that were beaten died at Nyahururu Referral Hospital where they were undergoing treatment.

31. He produced the phone make Tecno exhibit (2) and the wheel spanner (metal) that was used to beat the complainant – exhibit 6. The identified the Accused person herein to the court. The complainant made the report the same night after receiving some treatment at Kabazi Health Centre and then proceeded to Nakuru PGH where he was admitted.

32. PW4 Judy Wambui – PW2’s daughter also testified and stated that she witnessed the attack and robbery on the complainant. She was a passenger in the complainant’s vehicle with his mother PW2 and the complainant. She stated that they met three people on the road and one of them was in the middle of the road.

33. She stated that:

“I knew them because they are our neighbours. I knew their names. One was Mwai. The other one I do not recall their names. Another was George Mwai. Another one was calling himself police.”

34. She testified that she did not know their names but she knew them physically and that she was able to see the suspects because of the head lights of the motor vehicle and the attackers were in front and the vehicle had full lights on.

35. It was her testimony that one of them took something from behind the driver’s seat and they beat PW1 and broke his leg. That after the attackers left her mother made calls to the wife of PW1 and other people came to the scene who assisted to take PW1 to hospital. That PW1 was unable to stand because his leg had been broken and he was also bleeding on the head where he was beaten.

36. She stated that she could identify the Accused person as one of the attackers and that the two attackers were killed or were beaten and they died. She stated that: “Mwai is the one who remained. The other two attackers were killed…….” She identified the Accused as Mwai who was one of the attackers. That she had known Mwai for many years because he is her neighbour. He had known him for about 5 years.

37. PW5 Dr. Francis Thaithi from Nakuru Level 5 Hospital produced a P3 form for the complainant (Exhibit 4). The stated that the complainant was admitted at Nakuru PGH Hospital that he was referred to another hospital. The P3 was filled by another doctor called Kanyotu. The P3 form showed that PW1 had a scar on the skull and fracture of the right tibia. The approximate age of the injuries was 4 months and the probable type of weapon used was a blunt object.

38. The patient was treated with antibiotics and ban killers and plaster was put on the leg. X-rays and CT scans were done on the head and leg. The level of injury was grievous harm. He also produced a discharge summary exhibit 3 and CT scan report that revealed that the patient had sustained left side parietal bone depressed skull fracture with adjacent brain. Contusion and oedema (brain swelling). The CT scan is exhibit 2. The request for a CT scan was exhibit I.

39. At the close of the prosecution side, the Accused person was put on his defence.

40. He stated that he stays in Nakuru and worked as a conductor. That on 20/11/2016 in the evening he was going home at Mahiga farm. That he was walking from Kabazi Center alone. That he arrived home safely but on the road he encountered an incident where he had met three people. That he knew the people as one was called Peter Kibe Karanja and the 3rd one was Paul Mwicigi (PW1). That they were fighting on the rough road.

41. There was a motor vehicle. That Mwicigi (PW1) had a vehicle that was in the middle of the road with full lights on. That Peter Karanja, Peter Kibe and Paul Mwicigi were fighting behind the vehicle and he used his torch light to see them and recognized them and that he separated them then he proceeded home. He stated that he did not know why they were fighting but he just tried to stop the fighting and they stopped. That he did not fight anybody. He had no weapon and he did not take anything belonging to the three persons that were fighting. That he walked home alone and left the three persons at the scene.

42. It was his testimony, that he slept and the following morning he went to Kerengero police station to report what he had witnessed as he had met three people fighting at night on the road where he was detained. Subsequently, he was charged. He stated that he did not carry anything to the police station.

43. He stated that:

“The phone was brought after I had been detained. I did not know the phone and I did not handle the phone at all.”

44. He further stated that he heard later that Peter Kibe and Peter Karanja were killed by mob justice. That he did not attack Paul Mwicigi (PW1) but he heard that he was injured during the incident and was taken to hospital. He stated that he did not rob the complainant of his phone. That he is not the one who was found with the phone.

45. That he went to the police station because he heard that people were looking for him. So he took himself to the police that (surrendered) since we heard people were looking for him because they had heard that he was in the business of stealing. That he did not give a phone to any Police Officer. At the police station he went. That the phone was shown to him at the police station.

46. Appellant’s submissions were not on record by the time of drafting this judgement nor that of the Respondent.

ANALYSIS AND DETERMINATION

47. This being the first appellate court, my duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

48. Having considered the grounds of appeal, submissions thereon and evidence adduced before the trial court, it is my opinion that the paramount issue for determination is whether the prosecution proved the offence of the robbery with violence against the Appellant beyond any reasonable doubt.

49. Inevitably, this court in determining this appeal ought to satisfy itself that the ingredients of the offence of robbery with violence were proved and as so required in law; beyond any reasonable doubt.

50. The offence of robbery with violence is contained in Sections 295and 296(2) of the Penal Code as follows:

“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296(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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

51. Further, In Jeremiah Oloo Odira v Republic [2018] eKLR the Learned Judge encapsulated the aforementioned sections and elaborated on the offence of robbery with violence as follows:

“Robberyis committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theftand the use of or threat to use actual violence.

On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -

i. The offender is armed with any dangerous or offensive weapon or instrument, or

ii. The offender is in the company of one or more other person or persons, or

iii. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person”

52. (SeeOlouch vRepublic (1985) KLR)

53. Based on the evidence of PW1, PW2 and PW3 who distinctly gave a recollection of what unfolded on the material night, it is clear that PW1 was attacked leading to grievous injury and in the process robbed of his phone and money.

54. PW1, PW2 and PW4 testified that the Appellant together with two others jointly participated in attacking the complainant as he went home from work. They narrated how they were accosted by three boys including the Appellant on their way home. PW1 and PW2 saw the Appellant putting his hand in PW1’s pockets and taking his phone as the attack ensued. The Appellant in the company of two other offenders identified as Peter Kibe and Peter Karanja were armed with dangerous and/or offensive weapon identified as an iron bar (Exhibit 6)in court which PW1 confirmed to be his wheel spanner.

55. The witnesses narrated how the three boys attacked PW1 twice, he was beaten on the road and his leg was broken then they came a second time and hit him on his head until he sustained a severe injury. The attackers hit him on the head and on his leg causing injuries that proved to be grievous as evidenced by the P3 form produced by PW5. The P3 form indicates that he suffered a grave injury on the skull and right leg.

56. I wholly agree with the learned trial magistrate’s assertion that:

“Although the Accused person claims that he did not take part in attacking the complainant, the evidence of PW1, PW2, PW3 and PW4 shows that he participated in attacking the complainant. This is because PW1, PW3 and PW4 told the court that they met three people on the road. Two of them including the Accused person stood beside the road when one stood on the road and caused the complainant to stop his vehicle. The head lamps were on and the witnesses could see the attackers clearly and recognized them as their neighbours.”

57. It is my considered view that the Appellant was properly and positively identified by the PW1, PW2 and PW4. They stated that they knew the Appellant and the other attackers prior to the incident as he was their neighbour and that they were able to see the attackers as the head lamps from PW1’s motor vehicle were on. I find that the testimony of PW1, PW2 and PW4 to be reliable direct evidence of visual identification against the Appellant.

58. I am satisfied that the light from PW1’s motor vehicle headlamps was conducive for proper identification. This discounts the Appellant’s contention that the trial magistrate erred in law and fact by failing to find that the circumstances at the alleged time of robbery were not conducive to allow proper identification of the alleged attackers. The Appellant also admitted that he knew the complainant.

59. It is my reasoned view that the Appellant in his defense tried to mislead the court by stating that he was not involved in the attack and robbing of the complainant but that he was merely stopping a fight between the complainant and his co-attackers on the fateful night. The appellant surrendered himself to the police to save his skin from the mob that is believed to have attacked his co-attackers. Besides there is overwhelming evidence against the Appellant to prove that he was indeed part of the attackers and that he took a phone from the complainant’s pocket. I believe the eye witnesses evidence to be credible as they were all consistent in their testimonies and their stories tallied on the sequence of the events during the fateful night.

60. In Hassan Abdallah Mohammed v Republic [2017] eKLR, it was stated that:

“Visual identification in criminal cases can cause miscarriage of justice and should be carefully tested. The court in Wamunga v Republic (1989) KLR 424 at 426 had this to say:

“Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it can safely make it the basis of a conviction.”

61. I am satisfied the Appellant was recognized by prosecution witnesses who knew him well. The area where the incident took place was well lit by the motor vehicle’s head lamps and therefore I am unable to find any loophole in the manner in which the Appellant was identified. I am satisfied that the prosecution proved its case against the Appellant beyond any reasonable doubt.

62. I find that grounds 1,2,3,4 and 5 of the appeal must fail. In any case, it is my opinion that any irregularity did not occasion a failure of justice thus the proviso in Section 382 of the Criminal Procedure Code applies herein.

63. Consequently, the appeal on conviction fails.

64. The Penal Code prescribes a death sentence for the offence of robbery with violence. Accordingly, I find no reason to interfere with the sentence meted upon the Appellant by the trial court.

i. The upshot of this analysis is that the appeal lacks merit and is hereby dismissed.

DATED AND SIGNED AT NYAHURURU THIS 10TH DAY OF MARCH, 2022.

………………………………..

CHARLES KARIUKI

JUDGE