[2013] KEHC 1719 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 82 OF 2010

CHARLES WAWERU GACHOKA....................................APPELLANT

Versus

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

(Appeal from a judgment of Chief Magistrate's Court at Nyeri J. Kiare SPM dated 1st April, 2010)

JUDGMENT OF THE COURT.

By a Petition of Appeal filed in the Registry of this Court on 26th September, 2012, the Appellant faults the judgment of the lower court finding him guilty of the offence of robbery with violence contrary to section 296(2) of the Penal Code and ordering him to be detained at the President's pleasure. He complains on the main that the learned trial magistrate erred in law and in fact in convicting and sentencing him on charges that were not in tandem with the safeguards of section 296(2) of the Penal Code; second, that the learned trial Magistrate erred in law and in fact in declining to evaluate the defence case alongside the respondent's contrary to section 169(1) of the Criminal Procedure Code. Other complaints include failure by the Magistrate to note that the description of the events at the scene according to the complainant, could not favour conclusive identification and that the trial was riddled with procedural irregularities.

The facts of the case as summarized by the trial court are that the appellant on 9th March, 2009 at Muthinga area in Nyeri District, jointly with another not before Court, the appellant robbed a Mr. John Wamae Muchiri of a mobile phone, make Nokia 1200, one load (sic) bread, a quarter packet of sugar and four eggs all valued at Kshs. 2185 and at or immediately after the time of such robbery used actual violence to the said John Wamae Muchiri. The prosecution's case was that on the material date at about 8. 00pm, the complainant was walking home while talking on a mobile phone. He was carrying with him a loaf of bread, a ¼ kilo of sugar and eggs when he was attacked by two people. He held one of them while the other aimed a panga at him and cut him on his palm while he tried to block him. He dropped the items he had and the robbers took them and fled. He raised an alarm and when people came to his rescue he told them that he identified one of his attackers as Kanyatta. They tried to pursue the attackers but got none. The next day Kanyatta was traced by members of the public and had him arrested and turned over to the police. Kanyatta turned out to be the appellant herein and was arrested and charged with the offence of robbery with violence, convicted and sentenced as outlined earlier in this judgment. The prosecution called five witnesses including the complainant. The last witnesses were the doctor who produced the P3 form on behalf of the doctor who filled it and the investigating officer. PW 2 and 3 testified that on the material date on their way home, they found the complainant lying on the ground bleeding, about 100 meters from the shopping centre. He informed them that he had been attacked by the appellant and another person and robbed by them.

In his defence, the appellant stated that on the material day he left work at 9. 30pm. That is to say at 8. 00 when the attack took place he was still at work. He informed the court that he had a grudge with the complainant because two weeks prior to the incident, the complainant took meat at a butchery where he (the appellant) worked and refused to pay. The appellant consequently siezed his shoes and detained them. The complainant came the next day paid and took his shoes back but swore to put the the appellant in trouble that he would not be able to get out of. This according to him led to him being framed in the charges he faced in the Court below.

The appellant in ground 1 of his appeal has taken issue with the circumstances under which the alleged offence took place and contended that they were not conducive to identification. The court has noted that the alleged attack took place at night. It has however been argued that there was sufficient moonlight to permit identification of the attackers.

As a first appellate court, we are required by law to revisit evidence adduced at the trial court afresh, analyse and evaluate it and reach our own conclusion bearing in mind that the trial court had the advantage of seeing the demeanour of and hearing the witnesses.

The trial court in response to the issue of identification had this to say:

“I have perused all the evidence herein. PW1 the complainant herein knows the accused. He knew him before the date in question. He even knew him by his name, Charles Waweru and his alias name, Kanyatta.”

PW1 in his testimony states a follows:

“...I knew him as he is from home and there was very bright moon. He had a panga. Each had a panga. He cut me before I held him.It all was very fast. They collected my items and ran off.”(italics and underlining ours).

No other witness testified that they saw the appellant attack the complainant but this in a proper case is not an impediment or bar to conviction since a court can in law convict on evidence of a single witness provided such court warns itself of the danger of doing so.

The East African Court of Appeal held in the famous case of Abdallah Bin Wendo v. R [1953]20 EACA 166that:

“...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 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 circumstancial or direct pointing to the guilt, from which a judge, or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness, can safely be accepted as free from the posibility of error.”

Taking the above into account, can it be said that this is a proper case for conviction upon the evidence of a single witness? Can it safely accepted that the circumstances under which the attack took place eliminated possibility of error? Whereas the proper test is not elimination of any possibility of error, the circumstances must be such that the possibility of the witness identifying the alleged culprit is higher than not. It must be noted that conviction on the evidence of single witness is an exception and not the rule. The rule being as was stated in Wendo's case above is that the single witness rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult. That is to say where a court is prepared to convict on the evidence of a single witness, it must as a rule of thumb look for other evidence,whether it be circumstantial or direct pointing to the guilt, from which a judge, or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.

PW1 testified that the attack took place around 8. 00pm under illumination by the moonlight and further that everything took place very fast. He was nonetheless able to identify the appellant whom he claimed was from his home and knew by his other name of Kanyatta. He did not however say what led him to conclude that one of the attackers was the appellant. It well have been true that he knew the appellant well, however his evidence not being one based purely recognition but identification, required him to describe more in his evidence in the court below, how the appellant appeared to him on the night of the attack. Describing for instance how the appellant was dressed on the night of the attack could have lent more cogency to his claim that the moonlight was bright enough to enable him accurately identify the appellant.

The Court of Appeal has had this to say in that regard in the case of Misoi v Republic Criminal Appeal Number 230 of 2009 (Msa):

“...In effect, the appellant's arrest neither proceeded from description given by the complainant nor after the complainant's statement had been recorded. In those circumstances, it is difficult to understand the basis on which identification parade was arranged.”

In absence of any description of how the complainant came to the conclusion that it was indeed the appellant who attacked him on the night in question, we come to the conclusion that it would be unsafe to allow the conviction to stand. This ground of appeal therefore succeeds.

The appellant has complained that the trial Magistrate failed to evaluate his defence alongside the prosecution's evidence. This ground though plausible, cannot on its own impugn his conviction. Even though the burden of proof is always on the prosecution to prove its case beyond reasonable doubt, where an accused person goes beyond mere denial of allegations against him and introduces for instance alibi evidence or bad relationship with the complainant, it is necessary for the accused to call evidence to support such allegation otherwise it remains a mere allegation.

The appellant alleged he had bad relationship with the complainant and that two weeks prior to the attack the complainant had taken meat from the butchery where he worked and failed to pay prompting him to detain his shoes until the next day. He further alleged that the complainant upon paying for the meat told him that he would put him in a problem he would never get out of. These were very serious allegations which could have had a significant bearing on the charges he was facing. It was therefore incumbent on the appellant to call evidence to vouch for them since they were critical in supporting his claim that the charges were set up by the complainant out of the bad blood between them. Having failed to do so, the trial court had no basis to take them into account in analyzing the evidence before it. This ground of appeal therefore lacks merit.

However the Court having come to the conclusion that this is not a proper case where it would be safe to sustain the conviction on the evidence of a single witness, other grounds of appeal become superfluous and the appeal is hereby allowed, conviction quashed and the sentence set aside. The appellant is set free unless lawfully held.

It is so ordered.

Dated and delivered at Nyeri this 18th day of October, 2013.

OUGO R.E

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JUDGE

ABUODHA N.J

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JUDGE

Delivered in open Court in the presence of the Appellant in person and Mr. Njue for the Republic.

OUGO R. E

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JUDGE

ABUODHA N. J

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JUDGE