[2004] KEHC 1064 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 359 OF 2001

DAHIR IBRAHIM AHMED……………….....………….………………..APPELLANT

Versus

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

(Appeal against judgment by S. M. Kibunja,

Senior Resident Magist rate, dated 19 th October

2001, in the Senior Resident Magistrate’s Court at

Nanyuki, Criminal Case No. 1002 of 2001).

JUDGMENT

The Appellant faced five counts each alleging robbery with violence contrary toSection 296 (2) of the Penal Code and one count alleging attempted robbery contrary to Section 297 (2)of the Penal Code. At the close of the Prosecution’s case, the trial magistrate ruled that the Appellant had no case to answer in respect of the attempted robbery count and acquitted the Appellant on that count. It was count number five. The Appellant had a case to answer on the remaining counts and he did give the answer. After the conclusion, the learned trial magistrate wrote the judgment appealed against in which he convicted and sentenced the Appellant on counts 1, 2, 3 and 4.

Concerning the remaining counts, robbery in each count is alleged to have taken place on 2nd April 1998 at Mogwoon Farm where victims were members of the family of P.W.2. In the first count the person robbed was John Wilfred Kenyon who gave evidence as P.W.1. He was robbed of Ksh.10,500/=, a wrist watch, a wallet, a pair of blue sports shoes and Barclays Card. In the second count, the person robbed was Amanda Kenyon, P.W.7 who told the Court her full name was Amanda Sarah Kenyon, a wife of P.W.1.

She was robbed of a wrist watch and eye glasses. In the third count the person robbed was John Kenyon, P.W.2, who told the Court his full name was John Dyke Kenyon. He was the father of P.W.1 and husband to P.W.3. What was robbed from P.W.2 were alleged to have been Kshs.80,000/= and a pistol with five rounds of ammunitions. In count four the person robbed was Jane Kenyon, P.W.3 who told the court her full name was Jane Benette Kenyon wife of P.W.2 and mother of P.W.1. She was robbed of three coats, one Phillips radio cassette, one Sony digital radio, one shell first aid zip bag, one wrist watch, one woolen cardigan, one Barclays Bank umbrella, one sponge bag with calpol and toiletries, one khaki bush hat, one water proof jacket and one Casio calculator.

Throughout the robberies the robbers were alleged to have been armed with dangerous or offensive weapons namely AK 47 rifles, rungus , swords, simis, whips and sticks and to have used violence. Their number was put at five to six members.

From the evidence P.W.1’s home was separate from the home of his parents who lived on their farm known as Mogwoon at Nanyuki in Laikipia District. In the evening on 2nd April 1998, P.W.1, his wife and their two children went to see P.W.1’s parents at the parent’s home arriving in the compound at 7. 15 p.m. But while still at the car park they heard gunshots from behind. As they were parking their motor vehicle, three armed men emerged and held P.W.1 and pushed him to the passenger’s seat in front. They ordered P.W.1’s wife and children out of the motor vehicle and ordered everybody to go and sit under a tree for a few minutes as they beat up P.W.1 and took his wrist watch, Sh6000/= in a wallet and a Barclays Card. They demanded more money. They also took a wrist watch and eye glasses from P.W.1’s wife. They were talking in Kiswahili with Somali accent.

After the robbers fired at the parked Land Rover of P.W.1’s father, P.W.1 volunteered to take them to his parent’s house. They found the door locked but electricity lights were on. P.W.2 carrying a revolver was seen along a corridor inside the house going towards the door as if to open. By then two or more robbers had joined the first three. One of the men shot and wounded P.W.2 and as a result P.W.2 dropped his revolver and retreated to a backyard.

P.W.2’s house was broken into, P.W.1 being forced to assist in the breaking in. Thereafter P.W.1, his wife and children were pushed into the sitting room and then dinning room and it was at this time that some of the robbers attacked P.W.3 and robbed her. The robbers pushed P.W.1 into the store where money was being kept. P.W.1 found in a bag Sh.70,000/=. But they wanted more. P.W.1 took them to an office where they got Shs.3000/= to Sh.4000/= more in notes and Sh500/= in coins.

Witnesses said that all rooms were well lit with electricity and P.W.1 claimed he was able to see all the five to six members of the gang very clearly as they had not covered their faces adding that one of them had an army trousers but the rest had ordinary civilian clothes. In the end, they talked in a Somali language. Ordered P.W.1 to the car park. Took his shoes slapping him several times before they run away towards the river.

It was after that that P.W.1 who’s wife and children were being herded together with him, got the freedom to go and check on his parents in their house. They found the parents bleeding at the backyard. The manager, Ol Jogio Simon Barks and two employees joined them and helped P.W.1 to put his parents on a vehicle which P.W.1 drove to Cottage Hospital. The victim’s watchman called Akale Lokoui had also been shot by gun and was taken to same hospital. Apparently he later died from the injuries.

Report of the robbery was made by somebody else to the Police who subsequently visited the scene. P.W.9 Superintendent Willie Okelo, who was then the O.C.S. Nanyuki, told the Court how they tracked the robbers and as a result one of them was arrested having been injured in a fire exchange while other robbers escaped. P.W.9 was leading a group of Police Officers in company of a white man called Littlewood who had reported the robbery to the Police. Mr. Littlewood carried the Police on his motor vehicle. Some members of the public joined the search for the robbers but it was at night and they agreed to meet and continue the tracking the following day. The team was more organized and larger the following day, C.I.D. Officers led by Ikaria officers having joined the search. A sniffer dog and a helicopter were made available. The search went up to a place called Dol Dol where they found the robbers along a dry river bed. There was fire exchange but the robbers the witness kept on calling attackers escaped leaving behind one of them who had been injured by a gunshot. He was arrested and an AK rifle with 19 rounds of ammunition recovered. Also recovered from the arrested person were a bank card, an umbrella, a radio, calculator, clothes, sufuria, flour and other items including cash Kshs.3800/=.

The person arrested was airlifted by helicopter to hospital where he was treated as he had been shot on the left leg. P.W.9 told the court:

“We questioned him and he told us he had come from Isiolo and had come to attack that home on being led by one Dahir Ibrahim the accused. That man was called Abdi Hussein Gabor alias Kaimol the 1 st accused in the other case relating to the same attack. He had told us accused who had led them there knew the area as he used to work at that ranch looking after Farm Africa camels. I later talked with P.W.1 who told me he had also identified one of the attackers as among the Farm Africa workers who used to look after Farm Africa camels in their ranch. I later handed the case to C.I.D. for investigations. Later I learnt accused has also been arrested but I had not seen him before to -day. I learnt accused had been arrested recently.”

During cross-examination the witness said:

“The injured attacker told us you were the one with the revolver stolen from the ranch.”

Relying on that evidence from P.W.9 and what P.W.1 had told the court about the Appellant, the learned trial magistrate stated, bottom page 5 to page 6 of the judgment:

“Though the above witnesses confirmed the men were speaking Kiswahili with a Somali a ccent, P.W.2, P.W.3 and P.W.7 did not recognize any of the men. However, P.W.1 who from the available evidence had the best opportunity to see the men as he stayed with them longer and at close range said he recognized one of the men as a former employee of Farm Africa called Dahir who is accused in the dock. He said he had seen accused for four years when he was looking after camels belonging to Farm Africa but stationed at their Ranch. He (P.W.1) had shared this information with P.W.2, P.W.3 and P.W.7 and the Police as confirmed by P.W.9 the then O.C.S. Nanyuki Police Station. P.W.2 and P.W.3 confirmed they knew Dahir as a Farm Africa employee and when P.W.1 told them about having seen him during the robberies they were able like P.W.1 to pick him out during the parade organized by P.W.4 on 28. 7.01. I have no reasons to doubt P.W.1 when he says he saw all the attackers well as he had a lot of time to see them when moving from the parking into the house, store, office and then when heading to the farm s hop and then back to the parking where he and his family were released.

Among the attackers he recognized accused and he mentioned this to P.W. 2 and P.W.3 who knew him and to P.W.9 among others and when accused was arrested over 3 years later he picked h im out in the parade conducted by P.W.4”

That was the main basis of the conviction of the Appellant by the trial magistrate. He mentioned the repudiated statement under inquiry attributed to the Appellant but the main basis for the magistrate finding the Appellant guilty was what is contained in the quotation above from his judgment. We will return to that quotation later after looking briefly at what other witnesses said.

John Dyke Kenyon, P.W.2, spoke as if he was the one who opened the door of his house before he was shot by a robber he said was using P.W.7 and her children as a shield. He said he had opened the door because he heard the voice of P.W.7 calling on him to open the door. He added that after he was shot, he dropped his revolver, which as a result was taken by the person who had shot him as P.W.2 retreated and went to the backyard of his house. The only robber he had seen was a stranger who shot him. He talked about his injury and admission to hospital together with his wife for treatment. Although it was alleged in count III that Shs.80,000/= had been robbed from him, the prosecutor never made this witness talk about Shs.80,000/= and there was no evidence that anything else, apart from his revolver, had been robbed from him. He was clear in his evidence that he did not see the Appellant at the robbery. Otherwise he had known the Appellant when the Appellant was working for Farm Africa Ltd. as a camel trainer based on Mogwoon (Munguini) Limited Ranch owned by P.W.2.

He told the Court that he picked the Appellant at the Police identification parade because he was a person he knew as a former employee of Farm Africa and P.W.1 had told him (P.W.2) that he had recognized the Appellant among the robbers and had gone on to pick the Appellant at the identification parade and had given him the Appellant’s name as Dahir.

P.W.3 Jane Benette Kenyon told the Court she was in the house with her husband when they heard gunshots from outside. Sensing danger, her husband went towards the door holding a revolver as she went to make a radio call. After making the radio call, she met her husband holding his stomach and he told her he had been shot. He went to sit on the grass as she remained behind confronted by the person who had shot her husband. That person was joined by two others who beat her up and robbed her as other robbers were with P.W.1. When robbers had left, she was taken to hospital together with her husband.

Like her husband, P.W.3 told the Court she had known the Appellant when the Appellant was working for Farm Africa looking after camels based on her farm. Like her husband she picked the Appellant on the Police identification parade, not because she saw him among the robbers but because she had known him before and been informed by P.W.1 that the Appellant was at the Police station as a suspect in the robbery and that they were going to pick him in a Police identification parade.

P.W.4 Inspector Alfred Okuingo conducted the Police identification parades where the Appellant was picked by P.W. 1, P.W.2 and P.W.3. In his evidence, he did not give date of the parades. But although the evidence from P.W.1, P.W.2 and P.W.3 suggests that P.W.1 may have gone to an identification parade held on a day earlier than the day of the identification parade P.W.2 and P.W.3 attended, the evidence of P.W.4 suggests that the three witnesses went to the parades held on the same day 28th July 2001 at the same place.

That raises a question in our mind as to whether P.W.4 was a reliable witness. P.W.2 told the court:

“P.W.1 had told me he had recognized one of the robbers and he gave me the name and about one month ago he picked that person out in an identification parade.”

Was it not one month up to the time P.W.1 was talking to P.W.2? Was it one month from 27th August 2001 when P.W.2 was giving evidence? According to the Appellant, he was arrested on 28th May 2001. Police evidence said he was arrested on 12th July 2001.

P.W.4 told the Court that the remarks the Appellant made after identification by P.W.1 and P.W.2 was that each of those witnesses had employed him. No such remarks are reflected on the relevant identification parade forms. Further, P.W.4 conceded that the hair of the Appellant distinguished him from other members of the parade. The hair was different from the rest. The Appellant was the only Somali member of the parade.

We hold the view that this was a poorly conducted parade where the correct procedure was not adhered to throughout.

Amanda Sarah Kenyon, P.W.7, narrated the attack like P.W.1 did. But unlike P.W.1, P.W.7 said she was the one who knocked the door of the house of P.W.2 and P.W.2 came out to go and open when P.W.2 was shot by one of the robbers before he opened and somebody else opened the door. Apparently P.W.7 did not notice that it was her husband’s hand which opened the door. This witness was robbed but she did not recognize anyone in that well lit place as she moved with the robbers from place to place in company of her husband and children.

P.W.8, Police Inspector Nephat Kimuhu the then Deputy D.C.I.O. Laikipia, was instructed by his boss the D.C.I.O., to take a Charge and Cautionary Statement from the Appellant. In that position at that time what did he not know about the case against the Appellant before he recorded the Charge and Cautionary Statement from the Appellant? No wonder the statement turned out to be a confession which was subsequently repudiated and had to be admitted in the evidence after a trial within a trial.

It should not be forgotten that following the robbery in the evening on 2nd April, 1998, the following day a suspect known as Abdi Hussein Gabor alias Kaimol, was apprehended. Most likely a statement was obtained by the Police from him and Superintendent Willie Okelo, P.W.9, told the court that after arresting that suspect, he subsequently handed over further investigation to the C.I.D. It means the case was handed over to the D.C.I.O. when P.W.8 was Deputy D.C.I.O. As a result of the information those officers obtained from the arrested suspect, two more suspects were arrested and the three suspects were charged in a separate case with the robberies alleged in this case. By then the Appellant was not one of the three arrested suspects. The three suspects were therefore separately prosecuted.

We do not know what the outcome of that prosecution was. But it would appear that it was after that case had been finalized that the Appellant before us was arrested mid the year 2001. That is why he was charged and prosecuted alone. Having been so familiar with the case, the D.C.I.O. ought not to have instructed his deputy to record a Charge and Cautionary Statement from the Appellant and therefore Inspector Nephat Kimuhu ought not have recorded a Charge and Cautionary Statement from the Appellant.

In any case, that statement having been repudiated, it required corroboration. The learned trial magistrate in his judgment did not talk about corroboration of the evidence concerning the Appellant’s charge and cautionary statement. Instead the magistrate said that the contents of the statement supported the evidence of P.W.1. In other words, it is the evidence needing corroboration that is corroborating another piece of evidence also needing corroboration as it was actually weak evidence of a single witness P.W.1.

In his defence the Appellant denied that he participated in the robberies alleged against him. He said he was in Wajir and was surprised when he was subsequently arrested in Maua Town where he had gone to buy miraa for sale at Wajir. He complained that following the arrest he was kept for a long time in Police cells at Maua without further step being taken against him until he complained and was later collected by Police from Nanyuki who beat him up both on the way and at Nanyuki Police Station where he was taken and further detained without being taken to court quickly.

We said earlier in this judgment that we will return to the evidence of P.W.1 as relied upon by the learned trial magistrate in his judgment appealed against. That we now do starting with the evidence of Inspector Nephat Kimuhu.

First, the reliability of that evidence is suspect because the Charge and Cautionary Statement, as we have opined, should not have been recorded by this witness who was the Deputy D.C.I.O. at station which had been handling the case and was not only familiar with every aspect of the case but was also determined to secure conviction of the Appellant by any means. There was therefore a high risk of including in that statement some of the things the Appellant did not actually say, if indeed the Appellant gave the statement.

Secondly, that statement having been repudiated by the Appellant, the evidence in that statement needed corroboration. That corroboration could have come from the evidence of P.W.9 and P.W.1.

But what was the evidence of P.W.9 about? It was about a report of the robbery to the Police by a Mr. Littlewood. Visit to the scene of the robbery. Tracking the robbers and arrest of a suspect called Abdi Hussein Gabor alias Kaimol. Questioning that suspect and receiving information from the suspect incriminating the Appellant in the robbery. Thereafter the Police acting on that information arrested the Appellant and charged him in this case.

We hold the view that the said Abdi Hussein Gabor alias Kaimol having not been charged jointly with the Appellant, should have been brought to give evidence against the Appellant. The prosecution did not bring him to give evidence. What P.W.9 told the court from Abdi Hussein Gabor alias Kaimol concerning the Appellant was therefore hearsay and should not have been admitted in the evidence against the Appellant. It was wrongly admitted and it is incapable of corroborating any other evidence.

Concerning the evidence of P.W. 1, he never reported the robbery to the Police who did not therefore have his statement until P.W.9 looked for him to tell him that a suspect called Abdi Hussein Gabor alias Kaimol had been arrested and on questioning the suspect had mentioned the name Dahir Ibrahim as the person who had led the robbers to the home of P.W.2. It was after that meeting that P.W.1 started saying that he also identified one of the attackers as among the Farm Africa workers who used to look after Farm Africa Camels in the Ranch of P.W.2. Later in the day, P.W.1 went to record his statement to the Police in which he claimed that he had recognized one of the robbers as a former employee of Farm Africa called Dahir who had been sacked.

This is the witness who emphasized the fact that all the places, including rooms, were well lit with electricity and that the robbers had not covered their faces and that he saw all of them very clearly giving their number as five to six without adding that among them he recognized the Appellant. He could only say that one of the robbers had an Army trousers while the rest had ordinary civilian clothes. That is all P.W.1 could say about the robbers before he met with P.W.9 on 3rd April 1998.

If the Appellant had been seen at the robbery as P.W.1 came belatedly to claim after meeting P.W.9, P.W.1 could not have failed, as he did on the first opportunity to speak following departure of the robbers, to mention the Appellant’s name, adding the role the Appellant had played, whenever P.W.1 talked about the robbers and could not therefore have waited until P.W.9 met him to talk about the Appellant. P.W.1 moved with the robbers from place to place under bright electricity light and if he had seen the Appellant P.W.1’s evidence could not have been so silent as to the role the Appellant played at each stage of the drama. P.W.1 could not have failed to mention it to his wife and parents as he failed. He mentioned it to his parents only after meeting P.W.9. He does not seem to have mentioned the Appellant to his wife as there is nothing to that effect in the evidence of P.W.7. Moreover, P.W.1’s mother encountered a number of the robbers, if not all. If the Appellant had been present, P.W.1’s mother could have seen him and recognized him too. She told the Court she did not see the Appellant at the robbery.

As to the evidence of identification parades, we cannot understand what the Police were doing because where there is recognition of a suspect, the question of identification does not arise. All that is needed is for the witnesses to mention the name of the suspect recognized and lead the Police to the arrest of that suspect. Identification of the Appellant by P.W.1, P.W.2 and P.W.3 at the Police identification parade was therefore useless for the reason that those three witnesses knew in advance the person they were going to pick and could not have failed to pick him, P.W.1 having even emphasized to P.W.2 and P.W.3 in advance that it was the Appellant whom they were going to pick. Otherwise P.W.2 and P.W.3 clearly told the Court that they had not seen the Appellant among the robbers.

In our view, the learned trial magistrate had no good basis for relying on the evidence of P.W.1 as he did in the judgment. That evidence was weak and unreliable thereby needing corroboration an could not therefore provide corroboration to the repudiated statement attributed to the Appellant which also needed corroboration. The learned magistrate misdirected himself.

On the whole therefore the evidence on record cannot support a conviction on any of the four counts facing the Appellant to-date. We do hereby allow the Appellant’s appeal. Quash his conviction on each count and set aside the sentence thereof.

The Appellant be set at liberty forthwith unless lawfully detained in some other cause.

Dated this 18th day of November 2004.

J. M. KHAMONI

JUDGE

H. M. OKWENGU

JUDGE