[2021] KEHC 1866 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J) _

CRIMINAL APPEAL NO. E006 OF 2021

CONSOLIDATED WITH

CRIMINAL APPEAL NO. E007 OF 2021

CRIMINAL APPEAL NO. E008 OF 2021

CRIMINAL APPEAL NO. E009 OF 2021

AND

CRIMINAL APPEAL NO. E108 OF 2021

BETWEEN

DANIEL MUTHOMI MARIGU…………………1ST APPELLANT

EDWARD MURIMI KAKABU………….…....…2ND APPELLANT

PETER KIMENCHU MUGITA…………………3RD APPELLANT

JOSEPH MAORE NCHEBERE…….………...…4TH APPELLANT

JOHN MIRITI KAILEMIA……….…........…..…5TH APPELLANT

AND

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

(An appeal from the conviction and sentence in Criminal Case Number 620 of 2017 in the ChiefMagistrate’s Court at Maua by Hon. T.Gesora (CM) on 13. 01. 2021)

JUDGMENT

Background

1. DANIEL MUTHOMI MARIGU,EDWARD MURIMI KAKABU, PETER KIMENCHU MUGITA, JOSEPH MAORE NCHEBERE and JOHN MIRITI KAILEMIA (1st to 5th Appellants respectively)who were the 3rd, 2nd, 6th, 1st and 5th Accused persons respectively were jointly charged with robbery with violence contrary to Section 295 as read with section 296 (2) of the Penal Code committed on 21. 02. 2017 against Kenneth Ngugi Murungi who was also wounded

2. In the alternative count, 1st, 2nd and 5th Appellants and another were charged with handling stolen property contrary to section 322(1) of the Penal Code the particulars being that they were on 22. 02. 2017 found in possession of 27 goats and 13 sheep knowing or having reason to believe they were stolen or unlawfully obtained.

The prosecution’s case

3. The prosecution called eight (8) witnesses in support of the charges. Complainant testified that on the night of 21st and 22nd February, 2017 at about 23. 00 hours, he was at his employer’s farm with 5 of his co-workers when he saw a group that had bright torches approaching the farm. That fearing for their lives, they ran in different direction but he was not lucky as he was shot with an arrow that pierced through his left leg. That from his hiding place, he saw 3rd Appellant whom he knew before and three others driving away his employer’s goats and sheep. He said he identified the 3rd Appellant from the light of his own torch which was bright. PW3 Justine Mwenda Kahiga who was in company of PW1 stated that on the material night, he identified the 1st and 3rd Appellant who had a torch and was armed with a bow and arrows but did not identify the person that wounded PW1. He also stated that there was moonlight on that night. PW2 Peter Kirimi Mbogo was informed about the robbery of his 39 goats and 15 sheep by his manager Joseph Miriti Mburia. He later identified the 27 goats and 13 sheep that were recovered in his absence by the police. PW4 Nthenya Antony Gitonga stated that at the time of their arrest on 22. 02. 2017, the 2nd and 6th Appellant were neither armed nor in possession of any goats or sheep. PW6 Geoffrey Nthatu Kaisu stated that on 22. 02. 2017 at about 6. 00 pm, he saw 2nd, 4th and 5th Appellants running from Kamiramba village where 39 goats and 15 sheep were abandoned. Suspecting that the animals could be stolen, he reported the matter to police. PW7 APC Charles Mwangi stated that he arrested 1st, 2nd, 5th Appellants and another on 22. 02. 2017 at about 12. 15 am after they were identified by members of public among them one Lucy Karimi Gatu who said that she had seen them with suspected stolen goats and sheep. CPL Christopher Njue tendered as PEXH. 1 (a) to (e) the photographs of the sheep and goats that were recovered.

Defence case

4. All the Appellants denied the offences. The trial court after considering the evidence found the prosecution case proved, convicted and sentenced each of the Appellants to serve 25 years’ imprisonment.

The Appeal

5. The conviction and sentence provoked this appeal. In his petition of appeal and written submissions, Appellants argues that the prosecution neither proved robbery with violence nor possession of the stolen property.

Analysis and Determination

6. As the first appellate court in the instant appeal, I am required and indeed duty bound to subject the evidence tendered in the lower court to thorough re-evaluation and analysis so as to reach my own conclusion as to the guilt or otherwise of the appellant. In doing so I must give allowance to the fact that I neither saw nor heard the witnesses as they testified and therefore cannot comment on their demeanour. (See OKENO – VS – REPUBLIC (1972) E.A. 32).

7. Concerning, 1st, 2nd and 5th Appellants, PW6 Geoffrey Nthatu Kaisu stated he called police after he saw the three running away from where 39 goats and 15 sheep were abandoned. PW7 APC Charles Mwangi was categorical that when he arrested the 1st, 2nd, 5th Appellants and another, they were not in possession of any goats or sheep. Appellant’s denied having been at the scene where the goats and sheep were recovered from and since the evidence by PW6 that 1st, 2nd and 5th Appellant had the goats was uncorroborated, 1st, 2nd and 5th Appellants ought to have been given the benefit of doubt.

8. The trial court after considering the evidence by PW1 and PW3 stated that he was satisfied that they had positively identified the 1st and 3rd Appellant because of the powerful torches the robbers had, that there was moonlight and that they also recognized 3rd Appellant’s voice as they were calling out names.

9. It is trite that evidence of visual identification should always be approached with great care and caution (see Waithaka Chege v R {1979} KLR 271). Greater care should be exercised where the conditions for favourable identification are poor. (Gikonyo Karume & Another v R {1900} KLR 23). Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla bin Wendo & Another v R, {195} 20 EACA 166; Wamunga v R, {1989} KLR 42; and Maitanyi v R, 1986 KLR 198).

10. The Court of Appeal in the case of Joseph Muchangi Nyaga & another v Republic [2013] eKLR stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently.

11. The difference in approach between identification and recognition was expressed thus by Madan J.A in Anjononi and Others vs The Republic [1980] KLR;

“…………………This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

12. That is not to suggest of course, that cases of misrecognition cannot occur (See Karanja & Anor vs. Republic [2004] KLR 140) and courts are still duty-bound to examine such evidence with great care.

13. PW1 and 3 stated that he 1st and 3rd Appellants were well known to them. 1st and 3rd Appellants denied that they were at the scene of crime. The offence was committed at 11. 00 pm. The only source of light according a torch that was in possession of 3rd Appellant and moonlight.

14. That being the case, the trial court had a duty, which it failed to discharge, to test the reliability of identification by recognition at night by considering the intensity of the torchlight and moonlight, the location of the light in relation to the 1st and 3rd Appellants and time taken by PW1 and 3 to observe the 1st and 3rd Appellants so as to be able to recognize them. I am of the considered view that the purported recognition and identification of the 1st and 3rd Appellants at night was not free from error.

15. PW1 stated that he also identified the 3rd Appellant by voice. This type of identification has received judicial consideration on several occasions, In Libambula v Republic [2003] KLR 683 this Court held that:

“Normally, evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice, the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it.” (Our emphasis). See also Choge v Republic [1985] KLR 1.

16. PW1 did not specifically tell court what the 3rd Appellant said from which he recognized that to be his voice. The conditions at the time the voices were being heard were marked with fear and confusion by PW1 who had already been short with an arrow and was in pain. In my considered view, I find that hardly any conditions conducive to the positive and safe identification of a voice existed at the time. Accordingly, the 3rd Appellant cannot be said to have been positively identified by voice and the question of identification was not therefore settled beyond reasonable doubt. See Wanjohi & 2 Others v Republic [1989] KLR 415.

17. Further to the foregoing, the 3rd Appellant raised the defence of alibi that he was at home with his family. He called his wife as a witness.

18. The Supreme Court of Nigeria in the case of Ozaki & Anor Vs The State (1990) LCN/2449(SC) held as follows:

“it is settled law that the defence of alibi raised by an accused person is to be proved on a balance of probability” and that for it to be rejected it must be incredible and that the defence of alibi must be weighed against the evidence offered by the prosecution.

19. Our own Court of Appeal in the case of Kiarie v Republic [1984] KLR held THAT: -

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”

20. The trial magistrate rejected 3rd Appellant’s defence on the ground that he made about 117 calls on the material night and could therefore not have been asleep. With due respect, no evidence was tendered by prosecution to prove that the calls were made elsewhere other than from 3rd Appellant’s home.

21. Accordingly, and for the reasons set out hereinabove, I find that the prosecution did not prove its case against the Appellants on both the main and alternative counts beyond any reasonable doubt. The conviction and sentences are against the weight of evidence. This appeal succeeds. The conviction of each of the Appellants is quashed and the sentences set aside. Unless otherwise lawfully held, it is ordered that the Appellants be set at liberty.

DELIVERED AT MERU THIS25thDAY OFNovember2021

WAMAE. T. W. CHERERE

JUDGE

In the presence of-

Court Assistant - Kinoti

1st Appellant - Present

2nd Appellant - Present

3rd Appellant - Present

4th Appellant - Present

5th Appellant - Present

For the State - Ms. Mwaniki