[2022] KEHC 15920 (KLR)

Cheruiyot v Republic (Criminal Appeal 22 of 2019) [2022] KEHC 15920 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15920 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal 22 of 2019

AN Ongeri, J

November 11, 2022

Between

Nicholas Kiplangat Cheruiyot

Appellant

and

Republic

Respondent

(Being an Appeal from the sentence and conviction of B. R. KIPYEGON (SRM) in Kericho CMCCR. No.3420 of 2018 delivered on 11/7/2019)

Judgment

1. The appellant was convicted with the charge of robbery with violence contrary to section 296 (2) of the Penal Codeand he was sentenced to 30 years imprisonment on July 11, 2019.

2. The particulars of the charge were that on August 22, 2018 at Kipsolel Village within Kericho County, the accused person jointly with others not before court robbed Alfred Mosonik of a motor cycle worth Kshs 88,000/= and at the time of such robbery applied actual violence against the said Alfred Mosonik.

3. A summary of the prosecution case is that the complainant was hired to take the appellant on his motor cycle to a place called Kaptich on August 22, 2018 at 9 pm.

4. The complainant said before alighting, the appellant was joined with other people who were also on a motor cycle and they suddenly pulled him and, in an attempt, to strangle him and they cut him on the legs with a panga.

5. The complainant said he was able to recognize the appellant at Embassy building as they negotiated the fare.

6. The complainant said later he identified the appellant at an identification parade. The complainant said the appellant had soft hands like those of a woman.

7. The appellant in his defence denied involvement in the robbery and said he was arrested from his barber shop on August 22, 2018. He said the complainant picked him from the identification parade because he had dyed hair.

8. The trial court found the appellant guilty as charged and sentenced him to 30 years imprisonment.

9. The appellant has now appealed to this court on the following grounds: -i.That the learned trial magistrate erred both in law and fact in accepting the prosecution’s evidence of identification without considering the fact that PW 2 was a single identifying witness.ii.That the learned trial magistrate erred both in law and fact in finding that the identification parade conducted was properly procured whereas there were glaring irregularities.iii.That the learned trial magistrate erred both in law and fact in finding that the offence of robbery with violence under section 296 (2) of the Penal Code was proven beyond reasonable doubt yet not all the ingredients and/or elements of the offence were proven.

10. The parties filed written submissions which I have considered.

11. The appellant submitted that the prosecution case was primarily based on identification evidence by a single identifying witness, PW 1 yet the prevailing circumstances were difficult, it was at night, PW 1 was alone and several men were assaulting him.

12. The appellant cited the Court of Appeal case Kariuki Njiru & 7 Ors v Republic [2001] eKLR (Criminal Appeal No 6 of 2001)whereby the court stated as follows; 'The law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from possibility of error. The surrounding circumstances must be considered. Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.'

13. The appellant reiterated that it was necessary for the court to evaluate the credibility and veracity of the evidence of a single witness in respect to identification and proceed with caution to ascertain whether the surrounding circumstances were favourable to facilitate proper identification.

14. The appellant contended that the procedure and law governing identification parades was not followed thus rendering the identification parade exercise of little probative value.

15. The appellant argued that he was not represented and that no solicitor or friend was called during the identification parade exercise.

16. The appellant reiterated that the elements of the charge of robbery with violence as set out in Johana Ndung’u v Republic [1996] eKLR were not proven beyond reasonable doubt and as a result the appellant argued that his conviction and sentence were not founded on safe evidence.

17. The respondent reiterated that the elements and/or ingredients for the offence of robbery with violence under section 296 (2) of the Penal Code were proven beyond reasonable doubt namely that the appellant was armed with a panga, he was in the company of another and used the panga to wound the complainant as evidenced by the P3 form and treatment notes, the injuries were assessed as grievous harm.

18. The respondent relied on the case ofDima Denge Dima & Others v Republic [2013] eKLR whereby the Court of Appeal stated that; 'the elements of the offence under section 296 (2) are however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to form a conviction.'

19. The respondent contended that an identification parade was conducted and the complainant was able to identify the appellant.

20. Furthermore, in his evidence the complainant told the court that he picked the appellant in Kericho Town where there was sufficient lighting and even had a conversation with the appellant as they negotiated on the fare.

21. The complainant had sufficient time to see and internalize the physical features and voice of the appellant and therefore there was no possibility of error in the identification.

22. This being the first appellate court, my duty is to re-evaluate the evidence and arrive at my own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.

23. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated as follows;'1. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.

2. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. in doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.'

24. The issues for determination in this appeal are as follows: -i.Whether the prosecution proved its case to the required standard.ii.Whether the appellant was positively identified.iii.Whether the appeal should be allowed.

25. On the issue as to whether the prosecution proved its case to the required standard, the appellant submitted that the prosecution relied on the testimony of one witness.

26. I find that the trial court did not warn itself on the issue of relying on the testimony of a single witness.

27. In such a situation, the law requires that there should be other evidence either circumstantial or direct to corroborate the testimony of the single witness. The Court of Appeal in Chila v Republic (1967) EA 722 articulated this position and held that: 'The judge should warn himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.'

28. On the issue as to whether the appellant was positively identified, I find that the offence took place at night and although the complainant picked out the appellant from an identification parade, this was a case where the appellant was a total stranger to the complainant.

29. It is well settled that evidence on identification should be treated with a lot of care so as for the court to satisfy itself that it is safe to act on the evidence and to ensure that it is free from the possibility of error.

30. The Court of Appeal in Wamunga v Republic (1989) KLR 424had this to say on the issue; '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 favourable and free from possibility of error before it can safely make it the basis of a conviction'

31. InRoria v Republic [1967] EA 583 the Court of Appeal for East Africa discussed the danger of relying on such evidence and stated that; 'a conviction resting entirely on identity invariably causes a degree of uneasiness. That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.'

32. I find that the conviction herein is unsafe and I accordingly allow the appeal and I set the appellant free forthwith unless lawfully held for any other reason.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11THDAY OF NOVEMBER, 2022AN ONGERIJUDGE