[2022] KEHC 1322 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL APPEAL 23 OF 2019

(CORAM: F.M. GIKONYO J.)

(From the conviction on 27th March 2019 and sentence on 15th May 2019 by Hon. T. Gesora (SPM) in Narok CMCR No. 1146 of 2017)

DENNIS OKEMBO MANANI.........................APPELLANT

-VERSUS-

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

JUDGMENT

[1]. The Appellant together with two others was charged with the offence of Robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code in Count I.

[2]. Count I. Robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence are that on 20th September 2017 at Narok township in Narok North Sub County within Narok County being armed with dangerous weapons namely; dagger robbed off Jackson Maina one LG mobile phone valued at kshs.19,999/=. One pair of shoes valued at Kshs. 5,500/= and cash totaling 10,600/= all totaling Kshs. 36,099 and at the time of such robbery used actual violence to the said Jackson Maina.

[3]. The appellant faced an alternative charge of handling stolen goods contrary to Section 322 (1) as read with Section 322 (2) of the Penal Code. The particulars of the offence are that on 20th September 2017 at Narok Township in Narok North Sub County within Narok County otherwise in the course of stealing, dishonestly retained one mobile phone make LG valued at Kshs. 19,999/= knowing or having reasons to believe it to be stolen property.

[4]. The prosecution called 6 witness while the appellant gave unsworn testimony and did not call any witnesses.

Grounds of appeal

[5]. The appellant is challenging conviction and sentence of imprisonment for 15 years for the offence of robbery with violence contrary to section 296(2) of the Penal Code. His dissatisfaction is expressed in the amended grounds of appeal that;

a) The learned trial magistrate erred in fact and law in convicting the appellant by misconstruing the required standard of proof beyond reasonable doubt against the weight of evidence on record.

b) The learned trial magistrate erred in fact and law by convicting the appellant on insufficient, contradictory and uncorroborated evidence of a single identifying witness to guarantee a safe conviction.

c) The learned trial magistrate erred in fact and law by convicting the appellant without considering proper recognition of the appellant at the scene of crime given the difficult circumstances peculiar to this case as required under the law.

d) The learned trial magistrate erred in fact and law in convicting the appellant by relying on a wrong inference that was never canvassed by the prosecution at the trial against the established legal principles in criminal trial.

e) The learned trial magistrate erred in fact and law by meting out a manifestly harsh and excessive sentence without offering the appellant a chance to mitigate as required in established legal principles.

APPELLANT’S SUBMISSIONS

[6].The Appellant argued his appeal through written submissions. Counsel for the appellant submitted that the trial magistrate convicted the appellant by relying on the evidence of identification by recognition by the complainant; evidence of a single witness at difficult circumstances. He described the circumstance to be; that the complainant did not give evidence on the intensity of light, claims to know the appellant as a boda boda rider; he claims he was on the motorcycle holding it at the time of robbery; he did not give evidence on the distance between him and the appellant and whether he could clearly see him considering that it was late at night. In such circumstances, he argued that possibilities of errors cannot be ruled out. He relied in the cases of Hassan Abdallah Mohamed Vs Republic [2017] eKLR and Mwaura Vs Republic [1987] KLR 645.

[7]. The appellant further submitted that the trial magistrate practically imposed a theory not canvassed in evidence as required in criminal trial. Thereby, making an erroneous inference on the appellant’s alleged involvement in the crime; it was a wrongful conviction and sentence thereof. He relied in Section 107 (1) of the Evidence Act, the cases of Johana Ndungu Vs Republic CRA 116/1995, Wallen Nyando Makomere V Republic [2016] eKLR, and Okethi Okale & Others V R [1965] EA 555.

[8]. According to the appellant, the prosecution did not adduce evidence to prove that the appellant was at the scene of crime and while armed with a dangerous or offensive weapon or instrument robbed the complainant. He contends that the prosecution failed to prove that the appellant was actually in company of other persons who committed the alleged crime. The appellant admits that during trial the prosecution proved that the complainant was injured.

[9]. The appellant was emphatic that he effectively discharged the burden to explain where he resides and where he was in respect of the charge of being in possession of a recently stolen property. That from his testimony and that of PW4-the land lady, he was able to give a reasonable account of where he was on the night of the robbery. He relied in Section 111 of the Evidence Act, the case of Paul Mwita Robi Vs Republic [2010] eKLR, Kenny Arithi S/O Mwangi Vs Republic [1965] EACA and Article 50(2) of the Constitution.

[10].The appellant submitted that the trial magistrate failed to consider the appellant’s mitigation and circumstances which prevailed at the time the offence was committed as well as pre-sentencing report. He relied on Article 25 ( c) and 50 of the constitution the cases of Francis Muruatetu & Another V Republic, and Silas K. Ngari & Another V Republic [2018] eKLR

[11]. The appellant also attached the sentence imposed; that the trial court did not provide the reasons for sentencing the appellant. Its sentence therefore, was contrary to established legal principles and abrogated the appellant’s constitutional right to fair trial.

[12]. The appellant submitted that the trial court erred in law and in fact in convicting the appellant on insufficient, contradictory and uncorroborated evidence.PW2 testified that they recovered 8 phones while PW3 stated that they recovered 9 phones. He relied in the case of Eric Onyango Ondeng’ V Republic [2014] eKLRand Article 50 of the Constitution.

[13]. In conclusion, the appellant urged this court to set aside the conviction and sentence meted out to the appellant by the trial court.

PROSECUTION’S SUBMISSION

[14]. The prosecution submitted that the appellant was positively identified by PW1. There were circumstances that favored positive recognition of the appellant by PW1. The appellant was a person who was well known to the complinant.PW1 confirmed that the appellant was a boda boda rider whom he used to see at his place of work.PW1 stated that the appellant was riding the motor cycle and in a company of two others. The 1st accused and 3rd accused alighted from the motor cycle and 2nd accused; the appellant herein was left on the motor cycle. The 1st accused and 3rd accused were armed with a knife and club respectively. PW1 stated that there was light emanating from the street lights that assisted him recognize the appellant. Further the appellant was not wearing a helmet. The appellant had carried PW1 previously on the motorcycle. In cross examination, the appellant recalled the name of the appellant as Dennis and his street name ‘jipe moyo’.

[15]. . The prosecution submitted that the evidence of recognition of the appellant is corroborated by the recovery of the complainant’s phone from the appellant.

[16].The prosecution submitted that the trial court did not err in convicting. PW2-CPL Joseph Kabaie and PW3-APC Simon Lempasi stated that they were informed that a suspect had been arrested by boda boda operators at London area. They proceeded to the area and found the appellant had been arrested in the company of another who was found not to have been involved in the theft. PW2 and PW3 recovered assorted items from the house. Among the phones recovered was a phone identified by PW1 as his. The phone was produced as P Exh 2 and phone receipt as P Exh 3. The prosecution relied on the case of James Mungai Kamau V Republic [2021] eKLR.

[17]. The prosecution submitted that it proved all the ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The complainant was waylaid by the appellant and his two companions. They proceeded to rob him of his phone, shoes and money. The 1st accused was armed with a knife. The 3rd accused was armed with a club. The 1st accused tried to stab the complainant with a knife and the 3rd accused hit him on the side with a club.PW5-Benjamin Tum, a clinical officer treated the complainant on 27/09/2017. He confirmed that the complainant had pain on the abdomen, bruises on the side of the abdomen below the ribs, had pain on the right shoulder and right wrist region as well as the shoulder. He filled the P3 form and treatment notes produced as P Exh 4 and9 respectively. The appellant was recognized by the complainant as the perpetrator of the crime together with his accomplices.

[18]. The prosecution submitted that on mitigation the court considered the probation officer’s report and the sentiments of the appellant he had expressed to the probation officer as well as those of his family members. Therefore, the sentence of 15 years is lenient since the set out sentence under Section 296(2) of the Penal Code is death. The sentence passed is one not known in law. It is possible the trial magistrate considered the jurisprudence in Francis Muruatetu & Another V Republic Petition No. 15 Of 2015 [2017] eKLR, William Okungu Kittiny Vs Republic [2018] eKLR.They relied in the supreme court directions in Muruatetu issued on 6th July 2021

[19]. The prosecution submitted that the conviction was safe as against the appellant. They urged this court to uphold it and prescribe the proper sentence.

ANALYSIS AND DETERMINATION

Court’s Duty

[20]. First appellate court is under duty to re-evaluate the evidence presented at trial and draw its own independent conclusions. Except, it must bear in mind that it neither saw nor heard the witnesses give their testimonies. Thus, matters of demeanor are best observed by the trial court. See Okeno vs. Republic [1972] E.A 32.

[21]. I have perused the lower court record, written submissions and authorities relied upon by both parties. The ultimate overall questions to be answered are: -

i. Whether the prosecution proved its case beyond reasonable doubt.

ii. Whether the sentence was manifestly harsh in the circumstances.

Elements to be proved

[22]. In accordance with the Court of Appeal in the case of Oluoch –Vs – Republic [1985] KLR:

“Robbery with violence is committed in any of the following circumstances:

a) The offender is armed with any dangerous and offensive weapon or instrument; or

b) The offender is in company with one or more person or persons; or

c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………”

[23]. And, as per the case of Dima Denge Dima & Others vs Republic,Criminal Appeal No. 300 of 2007,it was stated that:

“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”

[24]. The prosecution offered evidence in proof that; (i) the offenders were armed with dangerous and offensive weapon or instrument; (ii) the offender were in company with one or more person or persons; and (iii) at or immediately before or immediately after the time of the robbery the offenders wounded, beat, strike or used other personal violence on the complainant.

[25]. The evidence by the complainant was robust and particular that he was attacked by three men and that two of the accused persons were armed with a knife and a club. The 3rd accused hit PW1, the complainant, with a club on the side of the abdomen. Other evidence sufficiently corroborated this.

[26]. Nonetheless, as the incident occurred at night, care should be taken to ensure the appellants were positively identified as the perpetrators of the offence. The court in Wamunga v. Republic (1989) KLR 424 at 426 had this to say:

“Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

[27].I have interrogated the circumstances under which identification was done. PW1 testified that he saw the appellant with the aid of the light emanating from the street lights. The identification was by recognition. Further the appellant was not wearing a helmet. The appellant was the one holding the motor cycle. PW1 stated that he knows the appellant as Dennis and a nick name ‘jipe moyo’. Although the incident occurred at night PW1 testified that on that particular night there was light from the street lights and the attackers did not have their faces concealed. The appellant was a person also well known by the complaint from previous engagements. The evidence show that there was sufficient light in the street under which the witness saw the robbers. The appellant had not concealed his face. The witness clearly saw him and was able to recognize him. I cannot find any element of mistake or delusion on the part of PW1 in the identification of the appellant, the 2nd accused, as one of the people who robbed the complainant on the fateful night. The circumstances favour positive identification and do not exhibit any particular difficulty in the identification of the assailants.

[28]. Further corroboration that the appellant was connected with that robbery, as a principal offender; through the items found in his possession. PW2 and PW3 recovered assorted items from the house of the appellant. Among the phones recovered was a phone identified by PW1 as his. The phone was produced as P Exh 2 and phone receipt as P Exh 3. The doctrine of recent possession has been applied in numerous decisions of apt circumstances to convict. The case of Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v. Republic Cr App. No. 272 of 2005(UR)summarizes elements necessary for proof in the doctrine of recent possession as follows;

“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.

In other words, there must be positive proof:

i). that the property was found with the suspect;

ii). that the property is positively the property of the complainant;

iii). that the property was stolen from the complainant;

iv). that the property was recently stolen from the complainant.

The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”

[29].The items were found in a house associated with the appellant. There is therefore evidence that leads to an irresistible conclusion that the appellant was amongst the persons who committed the robbery herein. The connection without any explanation on how he came into possession of the recovered phone is evidence that he was among the robbers.

[30]. Evidence adduced proves beyond reasonable doubt that, the appellant, in company with others armed with dangerous weapons, robbed the complainant and also used violence on persons thereto immediately before or during or immediately after the robbery.

[31]. Accordingly, the appeal on conviction fails.

Sentence

[32]. The Penal Code prescribes a death sentence for the offence of robbery with violence. The trial court imposed a sentence of 15 years after taking into account the appellant’s mitigation, the difficulties the family will face in his absence, the fact that the probation report indicated that he is not remorseful yet wants court to be lenient on him, and circumstances of the offence. The trial court broke away from the biddings of mandatory sentences and properly exercised discretion in passing sentence on the appellant. Accordingly, it has not been shown that the trial court overlooked some material factor or took into account some wrong or irrelevant factors, or acted on a wrong principle in imposing the sentence. Consequently, I find no reason to interfere with the sentence meted upon the appellant by the trial court.

[33]. The upshot of this analysis is that the appeal lacks merit and is hereby dismissed.

Dated, Signed and Delivered At Narok on this 22nd day of March 2022 through Microsoft Teams Online Application

--------------------------------

F. M. GIKONYO

JUDGE

In the presence of:

1. The appellant

2. Ms. Adallah for the appellant

3. Karanja for the Republic

4. Mr. Kasaso CA