[2017] KEHC 2383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO. 140 OF 2016

DANIEL MACHUA KANGERE.............APPELLANT

-VERSUS-

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

(Being an appeal from the Judgment of Honourable A. Lorot Senior Principal Magistrate, delivered on 17th December 2015 in Criminal Case No. 1290 of 2014 - Thika)

JUDGMENT

Daniel Machua Kangere (“Appellant”) was first presented before the Thika Chief Magistrate’s Court on 31/03/2014 charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code.

The particulars are that the Appellant is accused that on 29/03/2014, at Ngoliba village in Thika East District within Kiambu County, while armed with a knife, robbed Nancy Njeri cash Kshs. 7,000/=, a national identity card, KCPE Results Slip, a birth certificate, Equity ATM Card and other documents all valued at Kshs. 500,000/= and during the said robbery threatened to use actual violence on the said Nancy Njeri.

The trial proceeded before the Honourable A. Lorot at which the Prosecution presented five witnesses. The Learned Trial Magistrate found the Appellant had a case to answer and put him on his defence. The Appellant gave a sworn statement but did not call any witness. At the conclusion of the trial, the Learned Magistrate found that the Prosecution had proved the lesser but cognate offence of simple robbery but not robbery with violence. He therefore proceeded to reduce the charge to one of robbery under section 296(1) of the Penal Code. He also sentenced the Appellant to serve seven years in prison.

The Appellant is aggrieved by both the conviction and sentence and has appealed to this Court.

The Prosecution is also dissatisfied with the reduction of the charge to simple robbery and sought enhancement of the conviction to one of robbery with violence as originally charged and an enhanced sentence of life imprisonment. The Appellant was duly warned of the possibility that his sentence could be enhanced on appeal but chose to proceed with the appeal. His lawyer confirmed this choice.

The evidence that emerged from the Court below was as follows.

The Complainant, Nancy Njeri Mwangi (“Nancy”), testified as PW1. She lives in Ngoliba village and operates a kiosk at Yatta NYS Campus. She testified that on 29/03/2014, at around 7:30pm, she was heading home after closing her kiosk. She took a matatu and alighted at the Ngoliba stage.

Nancy testified that as she walked home from the stage, just before getting to her gate, someone tapped her from behind. When she turned, she noticed that it was Dan – a young man she knew. Dan told her that he wanted her handbag. Nancy refused to give it. A struggle ensued. Dan took out a knife. He then kicked Nancy so that Nancy loosened her grasp on the handbag and it fell to the ground. Dan then picked up the handbag and fled leaving Nancy screaming for help. Inside her bag were the items listed in the charge sheet as stolen.

John Kariuki (“John”) testified that he responded to Nancy’s screams. John’s house is right next to the road where the attack happened. He came running and found Nancy at the scene. She narrated what had happened and John gave chase. Unfortunately, the assailant had long gone and he did not find him.

Nancy then called Inspector Noor whose phone number she had saved on her phone. She explained what had happened and Inspector Noor came to the scene with Corporal Aden Ibrahim Koise.

On passing on information on what happened to her, Nancy went to record a statement at the Police Station while Insp. Noor and Cpl. Aden Koise went on patrol in search of the Appellant. The Appellant was known to them as he was formerly a KDF officer. Evidence adduced at trial shows that they apparently found and arrested him later that night. Nancy was called to the Police Station to identify him. She found him seated at the Police Station and confirmed he was her assailant. No identification parade was done – ostensibly because Nancy had already seen Dan at the Police Station.

APC David Mungai Ndatha confirmed that the Appellant was arrested by the two Police Officers and taken to the AP Police Post at Ngoliba at around 11:30pm the same day. PC Philemon Kosgei was the duty officer who took Nancy’s statement on 30/03/2014 at 10:30pm at 14 Falls Police Station. He also confirmed that he received the documents which were discovered in a thicket about three weeks after the robbery by Jane Karii Njoroge who testified as PW3.

Placed on his defence, the Appellant testified that on 29/03/2014 he had spent the whole day at a construction site assisting his grandfather with supervision. He went home at 2:00pm; relaxed until 4:00pm and then went to the market centre. His father, he says, had given him Kshs. 1,000 and he decided to spend it on refreshments. So, he went to Club Dillon at around 5:00pm. At Club Dillon, the Appellant testified that he watched a soccer match. He was with his friends at the Club, he testified. He then testified that he was arrested in the company of his friends as he headed home. He insisted that he knew nothing about the robbery and that he had never met Nancy before she purported to identify him at the Police Post. He also testified that Nancy did not know his name prior to his arrest.

The Appellant was insistent that the charges were a frame-up by the AP Officers who knew him well.

The Learned Trial Magistrate had no doubt that the charges had been proved beyond reasonable doubt. In material part, the Learned Magistrate concluded as follows:

From the evidence adduced, there was nothing to show that the Complainant and the Accused Person had had an encounter that would facilitate ill intent on the part of the Complainant. The Accused had confirmed that the AP Officers arrested him were known to him. The report at the AP Post made by the Complainant named the assailant as Dan. This Dan was well known to her. The fact that the Complainant was robbed is no longer contestable. Items robbed from her were recovered by a total stranger long afterthis case was brought to Court…..The Complainant testified that she struggled with her attacker for some time before he eventually subdued her with a knife. She let go of her grip on the bag and he took off with it. She reported that she was attacked by Dan, whom she knew. She faced him in Court and did not flinch a bit in cross examination. The Police who were reported to, also knew this Dan. They knew where to find him. He confirmed that they were looking for him. The identification of the attacker was unimpeachable. I find that the Accused was properly identified.

This being the first appeal, this court has the duty to re-evaluate the all the evidence given at trial and come to its own independent conclusions. This Court is not to merely confirm or disconfirm particular hypothesis made by the Trial Court. Even then, this Court must be acutely aware that it neither saw nor heard the witnesses as they testified and, therefore, it must make an allowance for that. See Okeno v R [1972] EA 32andKariuki Karanja v R [1986] KLR 190.

In his Petition of Appeal the Appellant listed eight grounds of Appeal as follows:

That the learned trial magistrate erred in law and fact by considering the frivolous, vexations and unsupported evidence adduced by the prosecution witnesses and failed to sufficiently consider the accused person evidence or defence thereby arriving at a wrong decision.

That the learned trial magistrate erred in law and fact by relying on uncorroborated, contradicted evidence by the complainant thereby arriving at a wrong decision.

The learned trial magistrate erred in law and fact in failing to consider all the facts leading to identification, the circumstances thereof thereby arriving at a wrong decision.

The Trial Magistrate erred in law and fact by convicting the appellant on the sole evidence of the complainant without considering other extraneous evidence of bad blood between the parties thereby arriving at a wrong decision.

That the Learned Trial Magistrate erred in law and fact by failing to differentiate between recognition and identification thereby arriving at a wrong decision.

That the Learned Trial Magistrate erred in law and fact by shifting the burden of proof to the accused person thereby arriving at a wrong decision.

That the Learned Trial Magistrate erred in law and fact by failing to consider the accused defence and dismissed the same without giving any valid reasons at all thereby arriving at a wrong decision.

That the Learned Trial Magistrate erred in law and fact by failing to consider that the appellant was a first offender and thereby erred in sentencing him to 7 years imprisonment without the option of a non-custodial sentence or reasons thereof thereby arriving at a wrong decision.

However, in his Written Submissions filed through his advocate, the Appellant collapsed the grounds into three:

First, that the evidence of identification was insufficient to warrant a conviction in this case;

Second, that the conviction was unsafe because it was based on the uncorroborated and contradictory evidence of the Complainant; and

Third, that the Learned Trial Magistrate ignored the alibi evidence of the Appellant in arriving at his decision convicting the Appellant.

On identification evidence, the Appellant’s main complaint is that the Complainant only reported and so confirmed in her testimony that she reported that “Dan” had attacked and robbed her. The Appellant complains that there are many people by the name “Dan” and that without further description or identification parade, it could not have been said that the identification was beyond error.

In this regard, the Appellant’s advocate quoted from Patrick Njiru Njue v Republic [2012] eKLRwhere the High Court (the Advocate wrongly attributed the case to the Court of Appeal) stated as follows:

Did P.W.1 know the appellant as Patrick Njiru or just Njiru" If it was as “Patrick Njiru” there is no evidence to support that. And if it was only “Njiru” then this required corroboration. This is because the name Njiru is a very common name in this region and one has to be specific. Inspite of the fact that P.W.1 categorically says she attended an identification parade there is no evidence to support that. It is also tricky to wholly rely on her evidence of identification because she has mentioned that there was a case where the appellant had stabbed the deceased and disappeared. Could it be vendetta" The court required some independent evidence to support P.W.1\'s claims. None of the neighbours who had been equally robbed was called to give evidence. They may have had material evidence as concerns this matter.

I find the reliance on this case to be misplaced. The circumstances are totally different. In the Patrick Njiru Njue Case, the person who had allegedly called out “Njiru” was deceased. It was not the witness who appeared in Court to testify. The witness herself did not know the Appellant but only heard her husband, who had died in the attack, calling out “Njiru.” The Court found the connection between the name and the Appellant to be too tenuous. The Court also considered that there was an apparent history between the Deceased and the Appellant which could have pointed to a vendetta.

Here, the circumstances are different. The witness who was before the Court testified that she knew the Appellant before the attack. She knew him as Dan. She used to see him around the Bus Stage at Ngoliba. She recognized him when he attacked her that night. She immediately told the Police Officers that it was “Dan” who had attacked her. The Police Officers whom she described this “Dan” to, also knew Dan.

They needed no further description of Dan other than his name. Immediately the Complainant said it was “Dan” who had attacked her, this was enough description among all the three people: the Complainant and the two Police Officers.

This was evidence of recognition not identification. It was therefore unnecessary for the Complainant to give a detailed description to the Police Officers when both Police Officers knew who the assailant was. Indeed, it would have been absurd to do so. It would also have been unnecessary to do an Identification Parade when the Complainant knew the Appellant by name.

What about the conditions for identification? The Appellant’s Counsel has argued that they were not favourable for positive identification. The Counsel complains that the Court did not perform its analysis with due care and that had it done so it would have come to the conclusion that the conditions at 7:30pm were not favourable for identification of the Appellant.

The Appellant is correct that that our case law calls for caution in receiving identification evidence because of the grave possibility of a miscarriage of justice occasioned by misidentification. The predecessor to the Court of Appeal plainly stated in Roria v R [1967] EA 583, that “a conviction resting entirely on identity invariably causes a degree of uneasiness.” And, the Court of Appeal reminded us in Kiarie v Republicthat “it is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.”

Finally, the famous Charles Maitanyi v R [1986] 1 KLR 198 admonished courts to exercise the greatest caution and circumspection before convicting on testimony of identification especially where the evidence is that of a single identifying witness.

Our decisional law has adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 to assist in the careful analysis of identification evidence. The Turnbulfactors are nine as follows:

How long did the witnesses have the accused under their observation?

What was the distance between the witnesses and the accused person?

What was the lighting situation?

Was the observation impeded in any way, as for example, by passing traffic or press of the people?

Had the witnesses ever seen the accused person?

If the witnesses knew the accused prior to the current transaction, how often?

If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?

How long elapsed between the original observation and the subsequent identification to the police?

Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance?

In the instant case, the Complainant testified that she had the Appellant under her gaze for quite some time as they struggled for the handbag. She had the first opportunity to see him when he tapped on her on the shoulder and she turned to face him. Throughout the attack, she had him under her view.

Secondly, the Appellant was in close proximity to the Appellant as they struggled for the handbag.

Thirdly, Nancy testified that there was a security light from the gate of her house on and that and that there was a full moon. In my view, this was enough lighting especially since this was evidence of identification through recognition.

Fourthly, the witness testified that she had seen the Appellant many times at the bus stage. Lastly, the witness told the Police immediately after the attack that it was the Appellant who had attacked her. She followed it up by making a first report at the Police post identifying the attacker by name. This greatly lessens the possibility that the identification was mistaken or was a product of concoction or afterthought.

These factors, in my view, makes the identification evidence quite solid and free from error.

Turning to the Appellant’s second major ground of appeal, I have equally been unable to find any material contradictions or inconsistencies in the Prosecution witness as alleged by the Appellant. First, the Appellant complains that only the Complainant stated that there was sufficient light yet two other witnesses were out at the scene that night and did not testify thus.

I have found no contradiction in the testimonies of the Complainant, PW2 and PW5. PW2 and PW5 were not specifically asked questions about the lighting conditions because they were not identifying witnesses.

Similarly, I found nothing unnerving of the fact that the Complainant did not specifically estimate the distance between the scene of the crime and the gate to her house where the security light was. This is what the Complainant said under oath:

It is on the road from the farms. I was near the house. There was a full moon. My security lights from the gate were on. The area was well lit.

Later on during cross-examination by the Appellant, the witness stated as follows:

I saw you well. We struggled very much over my bag. I know you well. Very well. The incident was at a road near my house.

I am satisfied that the evidence was consistent and there was no material discrepancies that made the conviction unsafe.

Lastly, the Appellant complains that his alibi evidence was not considered. However, his alibi evidence was displaced by the evidence of the Complainant which the Court found to be credible. On the other hand, after analysis of the Trial Court record, I would maintain the same verdict: the alibi evidence of the Appellant is effectively displaced by the eminently believable account of the Complainant. In view of the testimony of the Complainant which both the Trial Court and this Court has found to be credible, the alibi evidence is so implausible and has no reasonable inherent probability that it is true. All considered, I would agree with the Learned Trial Magistrate that weighing the Defence version against that offered by the Prosecution in totality, the Defence’s version is highly improbable.

In Ouma v. R (1986) KLR 619, the Court (Madan, Ag. CJ, Nyarangi, JA and Gachuhi, Ag. JA) had the following to say about evaluating Accused Person’s defence against the Prosecution evidence:

At the time of evaluating the Prosecution’s evidence, the court must have in mind the accused person’s defence and must satisfy itself that the prosecution had by its evidence left no reasonable possibility of that defence being true. If there is doubt, the benefit of that doubt always goes to the accused person.

In the present case, the kind of evidence adduced by the Prosecution – and in particular, the first report by the Complainant in which she specifically referred to the Appellant by name – leaves no reasonable doubt that it is the Appellant who attacked the Complainant and robbed her.

For these reasons, I am satisfied that the identification evidence by the PW1 was free from error and that there was sufficient credible and consistent evidence to warrant a conviction of the Appellant. Conversely, I hereby find the Appellant’s appeal to be without merit.

Now that I have found the Appeal by the Appellant on conviction to be wholly without merit, I will turn to the question of sentence. The Learned Trial Magistrate reduced the charge from one of robbery with violence to one of simple robbery. This was his reasoning:

Let me address myself to the charge. The Accused was all by himself. The issue of the knife, and its description were not clear. He slapped her. They still struggled. She did not say he had threatened to stab her. I have considered the evidence. I reduce the charge to one of robbery under section 295…..

Section 296 (2) of the Penal Code provides that:-

If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Under this section, therefore, the Prosecution is required to prove one of the following in order to successfully establish the offence charged:

That the offender was armed with any dangerous or offensive weapon or instrument; or

That he was in the company with one or more other person or person; or

That at or immediately before or immediately after the time of the robbery, he wounded, beat, struck or used any other violence to any person.

Here, even if I accepted the Learned Trial Magistrate’s misgivings about the knife which the Complainant says the Appellant brandished, I would still conclude that the offence of robbery with violence was proved. The Learned Trial Magistrate accepted the evidence that the Appellant slapped the Complainant and that they then struggled for the handbag. The Appellant then kicked the Complainant hard enough that she loosened her grip on the handbag. These three actions: slapping the Complainant; kicking her and violently struggling with her clearly satisfy the third alternative ingredient to the offence of robbery with violence: “at or immediately before or immediately after the time of the robbery,he wounded, beat, struck or used any other violence to any person.”

In this case, the Appellant both struck or beat the Complainant (kicking and slapping) and used other violence (during the struggle for the handbag). The Appellant should, therefore, have been convicted of the offence of robbery with violence and not simple robbery.

On the first day the Appeal was scheduled for hearing before Justice Mutende, the Prosecutor gave notice that it shall be requesting the Court on appeal to restore the conviction to one of robbery with violence. The Court gave due caution to the Appellant that he ran the risk that his sentence could be enhanced if he did not succeed on his appeal. However, when the appeal came up again before me more than four months later, the Appellant, who was all along represented by Counsel, insisted that he wished to proceed with his appeal.

Consequently, since the Appellant was duly cautioned about the risk of enhancement of his sentence, it follows that this Court is both obligated and is at liberty to, on the basis of the evidence on the record, properly convict the Appellant of the original offence charged: robbery with violence since all the elements are satisfied and there was no reason to reduce the charge.

The upshot is that the appeal by the Appellant against both conviction and sentence herein is dismissed. The Court will set aside the conviction entered by the Learned Trial Magistrate of robbery with violence under section 296(1) of the Penal Code. Instead, the Court enters conviction against the Appellant for the offence of robbery with violence contrary to section 296(2) of the Penal Code.

Given the finding above, rather than remand the case for sentencing, this Court shall conduct the sentencing hearing and pronounce sentence as it is empowered to do under section 354 of the Criminal Procedure Code.

Delivered at Kiambu this 2nd day of November, 2017.

……………………………………

JOEL NGUGI

JUDGE