[2004] KEHC 681 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

HIGH COURT CRIMINAL APPEAL NO. 97 OF 2004

DOMINIC MUTIE MWALIMU ::::::::::::::::::::::::: APPELLANT

VERSUS

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(From the Original Conviction(s) and Sentence(s) in Criminal Case No. 777 of 2004 of Chief Magistrate’s Court at Machakos: J. R KARANJA on 17/5/04

J U D G E M E N T

Dominic Mutie Mwalimu the appellant herein was charged with the offence of Robbery with Violence Contrary to Section 296 (2) of the Penal Code before the Machakos Chief Magistrate’s Court in Criminal Case 777/04.

In the alternative, he was charged with the offence of handling stolen goods Contrary to Section 322 (2) of the Penal Code. The appellant was charged with four others who were acquitted of the charges. The appellant was found guilty of the offence of Robbery with Violence, convicted and sentenced to death as by law provided. He is aggrieved by the said conviction and sentence and filed this appeal.

The appellant raised five grounds in his petition of appeal. The said grounds are as follows:

1. That the appellant was not properly identified as one of the robbers.

2. That the magistrate based the conviction on hearsay and contradictory evidence.

3. That there was no medical evidence to prove an offence of Robbery with Violence.

4. That his defence was not considered.

Briefly, the facts of the case before the lower court as we understand them are that PW 1 was the driver of motor vehicle KAH 467 P Mitsubishi Canter on 28/1/04. He was travelling from Mombasa aboard the said vehicle in company of PW 2 the turn boy. The vehicle was loaded with hardware goods which included cement, iron sheets, iron bars and ply wood. While on the Nairobi - Mombasa highway between Mtito Andei and Kambu PW 1 slowed down to avoid potholes when they were accosted by robbers and ordered out of the vehicle. The robbers drove off with the vehicle. PW 2 ran into the bush while PW 1 reported at Mtito Andei police station. PW 3 the owner of the vehicle was informed of the robbery and found the vehicle recovered and found some of materials still in the vehicle and two wheels of the vehicle and others had been stolen.

PW 4 and 5, watchmen at Kwakimuli recalled having seen the appellant and three others carrying iron sheets on bicycles on 5/2/04 at about 5. 00 a.m and were suspicious about the four people and reported to youth wingers of the area who then reported to police. PW 4 and 5 later identified the appellant on a parade.

PW 6 recalled that on 2/2/04 at 6. 00 a.m the appellant and others took iron sheets to her to buy. She identified appellant as the person who talked to her. Since she was going away they left the iron sheets to come back the next day. On returning, she found her father arrested by police and the iron sheets too had been taken way. She identified the appellant on an identification parade as the person who brought iron sheets to her home. PW 7 was one of the officers who recovered the stolen vehicle. PW 10 conducted an identification parade where PW 6, 4 and 5 identified the appellant. PW 11 was one of those who received the initial reports on the robbery on the night of 29/1/04, he managed to recover the vehicle on same night and on information from PW 4 and 5, he followed bicycle marks to the home of PW 6 where 68 iron sheets were recovered on 2/2/04.

In his defence the appellant said he was found in a bar where he had gone with his friends. He was arrested for no apparent reason. He was picked on a parade by mistake.

The appellant handed to the court very lengthy submissions but the court insisted that he should give a summary of his submissions. He argued that PW 6 never gave a description of him to the police; that PW 4 and 5 who identified him on the parade were his neighbours; that the person arrested with the iron sheets was a crucial witness to the court and yet he was not called as a witness.

The learned state counsel vehemently opposed the appeal. He conceded that PW 1 and 2 did not identify any of the robbers. He, however, argued that PW 6 identified the appellant as the person who took to her iron sheets for sale on the morning of 2/2/04 at about 6. 00 a.m and since she was leaving to take her child to school requested the appellant and the others with him to leave the iron sheets and return the next day. On her return from school she found her father arrested along with the iron sheets and that since it was in broad daylight PW 6 was able to ably identify the appellant which she did at a properly conducted parade by PW 10. It is the state’s contention that the court properly applied the doctrine of recent possession the iron sheets having been recovered three days after being delivered to PW 6’s home and that the conviction was safe.

We have carefully re-evaluated the evidence adduced before the lower court as we are required to. The appellant contends that a charge of robbery with violence was not proved because no medical evidence was ever adduced. The particulars of the charge with which the appellant was charged with reads as follows:

“On 28th day of January 2004, at about 9. 30 p.m at Silanga area

along Mombasa – Nairobi High way in Makueni District within

Eastern Province, jointly with others not before the court, while

armed with dangerous or offensive weapons namely pangas and

rungus robbed George Wambua Kathime of ………. and at or

immediately before or immediately after the time of such robbery

used personal violence to the said George Wambua Kathime.”

It is trite law and the Court of Appeal has repeatedly held that an offence of Robbery with violence is proved in any one of the following circumstances:

1. If the offender is armed with any dangerous or offensive weapon or

2. If the offender is accompanied with one or more other person or persons; or

3. If at or immediately before or immediately after the time of robbery, the offender wounds, beats, strikes or uses any other form of personal violence to any person.

See OLUOCH versus REPUBLIC 1985 KCR 549; ERICK WAMBULWA MUCHOCHO & ANOTHER versus REPUBLIC CRIMINAL APPEAL 24/03; and CHARLES OTIENO ATUNDA & ANOTHER versus REPUBLIC CRIMINAL APPEAL 215/02

In the present case it was the evidence of PW 1 and 2 that they were injured. No medical evidence was adduced. However, there was sufficient evidence that PW 1 and 2 were attacked by more than one person. That is sufficient proof of a charge of Robbery with Violence Contrary to Section 296 (2) of the Penal Code.

The magistrate correctly found that the evidence of PW4 and 5 was not useful to the court. The two witnesses talked of seeing the appellants together with others on 5/1/04 while pushing iron sheets on a bicycle. This cannot have been the case because; by 5th the appellant was already arrested. He had been arrested on 4/1/04 and iron sheets recovered by 2/2/04. The evidence of the two was contradictory and the witnesses could not have possibly been talking of the same incident as what the other witnesses testified about.

The remaining crucial witness was PW 6 who recalled having seen the appellant come to her home on 2/1/04 with iron sheets offering them for sale. Her evidence is that she only talked to one of those who came with iron sheets and who claimed that they were left over from a construction site. She said it is the appellant. It is true that she did not describe the person who delivered the iron sheets to the police. However, the person who offered iron sheets for sale approached her at 6. 00 a.m in broad daylight. They had a conversation. Even though the court was not told for how long they talked we are satisfied that the lower court reached a correct finding that PW 6 properly identified the appellant as the person who had delivered iron sheets to her. The iron sheets had been delivered to PW 6 on 2/1/04 and they were picked up on same day by PW 11 following information. The identification parade was conducted on 9/1/04 – seven days after PW 6 saw the appellant. The appellant never objected to the identification by PW 6 on the parade. He did object to the identification by PW 4 and 5. I believe not too long a time had lapsed to render PW 6’s mind to be blurred so as not to be able to identify the appellant. We do agree with the trial magistrate that the circumstances under which the appellant met PW 6 were favourable for PW 6 to identify the appellant later. It was a peaceful meeting whereby a seller was offering goods to a buyer. The appellant had not disguised himself in any way. Identification was sound and we have no reason to interfere with the magistrates finding even as to the demeanor of PW 6 which the magistrate commended.

The iron sheets were found in PW 6’s home in absence of PW 6. She said her father was there and was picked up. I believe he might be the person the appellant says was not called as a witness. PW 6 has owned up that the iron sheets were in her home because she was meant to buy them but not her father. No adverse inference can be drawn for failure to call PW 6’s father as a witness.

Apart from evidence of the informer, PW 6 has testified that it is the appellant who took iron sheets to her home. It is the appellant’s contention that the informer should have been called as a witness.Normally informers will not be called to testify unless they offer to give up their privilege or unless the court is of the view that they should be called. Under the circumstances there is ample evidence on record that did require the calling of the informer and the said evidence did not require corroboration. The fact that only one witness has adduced relevant evidence to the case does not mean there has to be corroborative evidence.

The appellant argued that his defence was not considered or rebutted. There was nothing to rebut because he gave a mere denial in his defence. The trial court found that it was not sustainable in light of the evidence on record. The defence was indeed considered.

In his written submissions, the appellant referred to several cases in support of his submissions but there were no proper citation for the cases nor were copies availed to court. They were of little value to the court as the court could not refer to them.

After the robbery, not all the goods were stolen from the vehicle. Some goods were found on the vehicle. They were bulky in nature. PW1 recovered the iron sheets from PW 2. PW 3 identified the iron sheets. He produced receipts to confirm that he had purchased them in Mombasa amongst other things.

In sum we find that conviction of appellant based on PW6’s evidence was sound. He was found in recent possession of the stolen iron sheets three days after the robbery. They are bulky items and not easy to dispose of. We confirm the conviction and sentence. The appeal is, therefore, dismissed.

Dated at Machakos this 18th day of November 2004

J. LESIIT

JUDGE

R.V. WENDOH

JUDGE