[2017] KEHC 1976 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 4 OF 2017[consolidated with Criminal appeal No. 5 of 2017]

1. DANIEL OBANYA MANG’OLI

2. VINCENT WABWIRE MAKOKHA.........................APPELLANTS

VERSUS

REPUBLIC.......................................................................REPUBLIC

(From the original conviction and sentence in Criminal case No.433 of 2012 of the Chief Magistrate’s Court at Busia by Hon. M.A Nanzushi– Senior Resident Magistrate)

JUDGMENT

DANIEL OBANYA MANG’OLI and VINCENT WABWIRE MAKOKHAthe appellants were convicted in four counts for the offences of robbery contrary to section 296(2), in six counts for the offence of grievous harm contrary to section 234 of the Penal Code and in one count for the offence of assault causing actual bodily harm contrary to section 251 of the Penal code.

The particulars of the offences were that on 15th March 2012 there was a spate of robberies that affected several villages of Nambale Sub- County of Busia County. In the course of the robberies, some victims were injured.

The appellants were arrested, charged, tried convicted in all the counts. They were sentenced to suffer death as provided for by the law.

Briefly the prosecution case was that after a spate of robberies in Nambale sub- County, the two appellants were recognized.

The first appellant pleaded an alibi while the second appellant opted to keep mum after the prosecution had closed its case.

The 1st appellant was represented by Mr. Masake, learned counsel while the 2nd appellant was represented by Mr. Nyambane, learned counsel.

Each appellant had raised similar grounds of appeal and which I have summarized as follows:

1. That the learned trial magistrate erred in law and facts by convicting the appellants on uncorroborated evidence of a single witness.

2. That the learned trial magistrate erred in law and facts by shifting the burden of proof.

The state conceded the appeal through Mr. Owiti, the learned counsel. He contended that the purported recognitions were not safe in the circumstances of this case.

This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

It is trite law that a conviction can be based on the evidence of a single witness. This must be tested with a lot of care especially where circumstances for a positive identification is not favourable. The Court of Appeal for Eastern Africa in the case of ABDALLAH BIN WENDO v REPUBLIC 20 EACA 166 at page 168 stated as follows:

Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this 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 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 the testimony of a single witness, can safely be accepted as free from the possibility of error.

Before looking for corroborative evidence the court must be satisfied with the evidence of the purported identification or recognition. The other important fact for the trial court to bear in mind is that even in cases of purported recognition mistakes are often made. Lord Widgery, CJ in the case ofR. v TURNBULL [1976] 3 All E.R. 549emphasized this point at page 552 when he said:

Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

John Shikuku Kutrim (PW2) testified that he recognized the first appellant with the help of the security light. He said this light was not so bright. During cross examination, he described the light as dim. This ought to have put the learned trial magistrate on alert. The conditions obtaining at the time was not favourable for any recognition. Though the learned trial magistrate made a finding of a conversation, I agree with the 1st appellant’s counsel that there was no such a conversation. I make a finding that John Shikuku Kutrim (PW2)was not in a position to recognize anybody including the first appellant. Had he done so, he would have informed the police at the earliest opportunity and the identification parade would not have been necessary.

The evidence of John Shikuku Kutrim (PW2)had linked the 1st appellant to the offences in counts 4, 6 and 8. There was no evidence to link him to the other offences.

When an accused has pleaded an alibi as his defence, he does not in law assume any burden of proving it. This was held in the case of KIARIE V. R. (1984) KLR 739,at page740the court said:

An alibi raise 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.

Earlier on the court in the case of UGANDA v. SEBYALA & OTHERS [1969] EA 204, the learned Judge quoted a statement by his lordship the Chief Justice of Tanzania in Criminal Appeal No. 12D 68 of 1969 where his lordship observed:

The accused does not have to establish that his alibi is reasonably true. All he has to do is to create doubt as to the strength of the case for the prosecution. When the prosecution case is thin an alibi which is not particularly strong may very well raise doubts.

In the instant case the learned trial magistrate did not specifically evaluate the alibi defence as expected of her so that she could make an informed finding. This defence coupled with the evidence on record raises reasonable doubts in favour of the first appellant. This ought to have been resolved in his favour.

What about the second appellant? What evidence connected him to the offences? From the evidence on record, he was purportedly recognized by Bernard Oricham (PW9). He testified that when he flashed his spotlight, he identified the second appellant. His father,Dismus Okwaro Onyapiti (PW6),testified that though he flashed his spotlight at the faces of the people he initially thought were police officers, he did not recognize anybody. Certainly the circumstances were not favourable for a positive identification and recognition. Had the learned trial magistrate headed the directions by Lord Widgery in the case ofR. v TURNBULL [1976] 3 All E.R. 549she would not have convicted the second appellant. This is the direction he gave at page 552:

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special 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 witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.

The evidence of Bernard Oricham (PW9) had linked the second appellant to count five. There was no basis for the convictions in the other counts. The evidence on record however indicate that the purported recognition was unsafe to base a conviction on.

I agree with the counsel for the appellants and the respondent’s counsel that the convictions were unsafe.

It is desirable where an accused person has been charged with several counts to analyze each count separately and make a conclusion on it as to whether it was proven or not, giving reasons for the conclusion arrived at. If an accused is convicted in several counts with a death penalty, then he ought to be sentenced only in one count and the sentence in the other counts is left to remain in abeyance. The sentencing in this case was untidy. This is what the learned trial magistrate said:

The accused persons have only one life. They cannot serve more than one death sentence in regard to the four robbery with violence charges. The accused are sentenced to serve death sentence. Right of appeal 14 days.

The learned trial magistrate after convicting the appellants in several counts with different sentences gave only one sentence. She did not say in which count she was meting out the sentence and in which the sentence was to remain in abeyance. She ought to have pronounced the sentences on each of the counts there was conviction but indicate the sentences were suspended.

It is also desirable where there is more than one accused person to evaluate the evidence touching on each accused person separately before arriving at a conclusion to convict or to acquit. In the instant case this was not done. The approach adopted is wrong. Though charged together, evidence must affect each separately and distinctly.

The learned trial magistrate did not have sufficient evidence at her disposal to convict the appellants. I accordingly quash the convictions and set aside the sentences. Each appellant is set at liberty unless if otherwise lawfully held.

DELIVEREDandSIGNEDatBUSIA this 29thdayof November, 2017

KIARIE WAWERU KIARIE

JUDGE