[2017] KEHC 346 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL APPEAL NO. 165 OF 2015

(Being an Appeal from Original Conviction and Sentence in Chief Magistrate’s Court at Naivasha Criminal Case No 3019 of 2013 – P. Gesora, CM)

DANCUN MWANGI KAIRU.....................APPELLANT

-VERSUS-

REPUBLIC..............................................PROSECUTOR

J U D G M E N T

1. The Appellant herein was charged with Robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. In that on the 19th day of December 2013 at Kona Mbaya in Gilgil District within Nakuru County, while armed with dangerous weapons namely Maasai sword and a bolted rungu, he robbed James Koyo of his motor cycle registration number KMCV 291H make KingBird, cash Kshs 520/= and a mobile phone make Nokia 217N all worth Kshs 84,620/= and immediately before or immediately after the time of such robbery used actual violence to the said James Koyo.

2. At the close of the trial, he was found guilty and convicted. The trial court sentenced him to death. He now appeals to this court against that outcome. On the eve of the hearing of the appeal the Appellant filed amended grounds. Grounds 2, 3 and 4 challenge the general adequacy of the prosecution evidence, and in particular the identification of the Appellant. In ground 1 the Appellant complains that his right to fair trial under Article 50 (2) (b) and (c) of the Constitution were violated. Finally, in ground 5 the Appellant accuses the trial court of erring by shifting the burden of proof on him.

3. In support of the grounds the Appellant filed written submissions. First, regarding ground 1, he complains that he was not provided with witness statements before the trial, and his defence was thereby prejudiced. On the second ground he took issue with the fact that the complainant did not state the time of offence, light used, give a description of the assailant to police when he reported or attend an identification parade.

4. CitingMaitanyi -Vs- Republic [1986] KLR 198 the Appellant submits that this was a case of a sole identifying witness which calls for caution by the trial court. Under ground 3, the Appellant pokes holes in the prosecution evidence on the date of the offence, and contrast the evidence of the investigating officer and complainant regarding identification of the attacker and the recovery of the stolen motor cycle, for veracity. He also complained that crucial witnesses including informants of the investigating officer and documentary evidence on ownership of the motor cycle, as well as the motor cycle itself were not produced during trial.

5. Finally, in respect of fifth ground the Appellant quoted a passage of the lower court judgment to demonstrate that the court shifted the burden of proof on the Appellant.

6. On behalf of the DPP, Miss Kavindu opposed the appeal. She reiterated the prosecution evidence and also took issue with the raising of the matter in the first ground, on this appeal for the first time.

7. In Pandya -Vs- Republic [1957] EA 336 the Court of Appeal for Eastern Africa defined the duty of the first appellate court:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

8. In brief, the prosecution case was that on the night of 19/12/2013 James Koyo(PW1) was ferrying a supposed passenger identified as the Appellant from Gilgil to Kikopey on the motor cycle KMCV 291H, owned by John Njoroge Kimondo(PW2). PW1 heeded when the customer requested him to stop as he made a call of nature. On returning, however the customer wielded a sword and knife. He attacked PW1 inflicting serious injuries on him. Having overpowered PW1, he fled with the motor cycle. Good Samaritans who came to the scene escortedPW1to hospital as PW2 notified police.

9. Two days later, members of public arrested the Appellant at Gilgil but police rescued him as he was being assaulted. The Appellant led police to Karagita area and to the stall of Joel Muguko Wachira (PW5), who had allegedly purchased the motor cycle from one Duncan Mwangi Kairuthrough a third party.

10. In his defence, the Appellant stated that on 21/12/2013 he visited the house of his girlfriend at Gilgil. He was lured from the house by someone who posed as a customer for building materials to a place where a group of people attacked him prior to his arrest. His girlfriend was also arrested. He stated that the real cause of the attack and arrest was a love tussle over his girlfriend.

11. This court having considered the evidence of the trial and submissions on appeal had no difficulty in concluding, firstly, that PW1was robbed of the subject motor cycle on the material night. And that he sustained injuries during the said robbery. Secondly, that the motor cycle in question, the property of PW2 was recovered from the custody of PW5. The sole question to be determined was whether the Appellant was sufficiently identified at the scene of attack and also connected with the motorcycle recovered from PW5.

12. The answer to the first question must be in the negative. PW1 was alone when he was attacked, evidently at night. Although he said the robbery scene was illuminated by light from nearby houses, it is not clear how far these houses were and what sort of light it was.

13. In Abdalla Bin Wendo & Another -Vs- Republic [1953] 20 EACA 166, the Court of Appeal for Eastern Africa stated that:-

“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but his rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on testimony of a single witness, can safely be accepted as free from possibility of error.” (Emphasis added).

14. The Appellant was not known to the complainant prior to the date of the robbery, and on his arrest, no identification parade was conducted to test PW1’s alleged identification. ThusPW1’sevidence to that effect is no more than dock identification which is worthless. The Court of Appeal for Eastern Africa in Ajode -Vs- Republic [2004]2 KLR 81, stated concerning such evidence that:

“It is trite law that dock identification is generally worthless and a court should not place much reliance on it unless it has been preceded by a properly conducted identification parade. It is also trite law that before such a parade is conducted, and for it to be properly conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade (see case of Gabriel Kamau Njoroge -Vs- Republic [1982 – 88] 1 KAR 1134).”

15. The second piece of evidence connecting the Appellant with the offence is the testimony of PW5, himself and an accomplice. His evidence does not prove that the ‘Dan’ he spoke to on the phone was the Appellant; nor was the phone line used shown to be in the Appellant’s name. One David Letila was mentioned by PW5 in the regard. PW5 was at pains evidently to clear the Appellant as he stated that a third party and not ‘Dan’ had brought the motor cycle to him. He kept the motor cycle even without ownership documents after the said agent failed to return.

16. On my own evaluation PW5was not a credible witness and should have been in the dock to answer for his possession of the stolen motorcycle. Inexplicably, police chose to treat him as a witness. It may be true that the Appellant led the investigating officer toPW5’s stall, itself evidence of guilty knowledge, in light of the recovery in the said stall. However this evidence is significantly weakened on two accounts: the prevaricating nature of PW5’s evidence, and the failure by police to record a formal statement from the Appellant. In any event this evidence as presented is too tenuous to support any firm finding.

17. The foregoing is enough to dispose of this appeal, and I concur with the Appellant’s submissions in support of grounds 2, 3 and 4 as relevant thereto. The conviction of the Appellant on the evidence tendered at the trial is not safe and cannot be allowed to stand. Accordingly, the conviction is quashed and the death sentence is set aside. Unless otherwise lawfully held the Appellant is to be set at liberty forthwith.

Delivered and signed at Naivasha, this 12th day of October, 2017.

In the presence of:

Mr. Mutinda for the DPP

Court Assistant – Barasa

Appellant – present

C. MEOLI

JUDGE