[2023] KEHC 25067 (KLR)

Echwa v Republic (Miscellaneous Criminal Appeal E124 of 2023) [2023] KEHC 25067 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25067 (KLR)

Republic of Kenya

In the High Court at Lodwar

Miscellaneous Criminal Appeal E124 of 2023

RN Nyakundi, J

November 9, 2023

Between

Ekitela Ekomwa Echwa

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. C.A. Mayamba in Kakuma law court Cr. Case No. E071 of 2023)

Ruling

1. The Appellant was charged with the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code. Particulars stated that the Accused person on the 8th day of February 2023 at around 11:30 hours at Kakuma refugee camp in Turkana West Sub- County within Turkana County, jointly with another not before court while armed with rungus robbed Muya Jelani of his motorcycle registration number KMFZ 815Z make TVS valued at Kshs. 135,000/=, mobile phone make Redmi and cash Kshs. 7,000/=, and at the time of such robbery used actual violence to the said Muya Jelani.

2. The Appellant was convicted and sentenced to 30 years imprisonment. Being aggrieved by both the conviction and sentence meted out against him by the trial court, he filed the instant appeal on grounds that: -i.The learned magistrate erred in law and facts by convicting the appellant against the weight of the evidence on record of the prosecution of this case.ii.That the learned magistrate erred in law and facts in convicting the appellant on the basis of speculation rather than on the basis of concrete evidence.

3. Reasons wherefore the Appellant prayed that the appeal be allowed and the conviction and sentence be set aside.

4. Both parties were directed to have the appeal canvassed by way of written submissions. However, by the time of drafting this judgment there were no submissions filed from either party.

Analysis And Determination 5. This being the first appellate court, my duty is to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32. The court should however bear in mind that it did not see witnesses testify and give due consideration for that.

6. Having considered the grounds of appeal, and evidence adduced before the trial court, it is my opinion that the paramount issue for determination is whether the prosecution proved the offence of the robbery with violence against the Appellant beyond any reasonable doubt.

7. Certainly, this court in determining this appeal ought to satisfy itself that the ingredients of the offence of robbery with violence were proved and as so required in law; beyond any reasonable doubt.

8. The offence of robbery with violence is contained in Sections 295 and 296(2) of the Penal Code as follows:295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.296(2).If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

9. Further, In Jeremiah Oloo Odira v Republic [2018] eKLR the Learned Judge encapsulated the aforementioned sections and elaborated on the offence of robbery with violence as follows:Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -i.The offender is armed with any dangerous or offensive weapon or instrument, orii.The offender is in the company of one or more other person or persons, oriii.The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person” See Olouch v Republic (1985) KLR)

10. Based on the evidence of PW1, PW3, PW4 and PW7 who led evidence to what unfolded on the material night, it is clear that PW1 was attacked leading to grievous injury and in the process robbed of his phone, money and motorcycle registration number KMFZ 815Z.

11. PW3 testified that the complainant reported that he had been attacked in a village called Nalemsekon by people he physically knew. He testified that with the help of members of the public, they got the contact of NPR officers deployed at Lokangai and informed them of the incident. They informed them that the motorcycle was headed to Lokangai. It was his testimony that when the two accused persons approached NPR officers and saw them, they turned the motorcycle. The pillion passenger who is the accused herein fell down as the motorcycle was turning. The NPR officers gave a chase and got hold of the accused as the other rider ran away.

12. The accused was taken to the chief’s office where he was held in a room before they went to collect him. It was his testimony that they interrogated the accused herein who also gave the name of the rider as Ekwe Naukot while admitting that they had only taken Kshs. 4,000/= from the complainant.

13. On identification, the appellant confirmed the testimony of the complainant that he had been seeing the accused physically, and so they were not strangers to each other.

14. I wholly agree with the findings of the trial court that the elements of robbery with violence were properly established and as such the conviction and sentence was proper. Consequently, the appeal on conviction fails.

Sentence 15. In this case the appellant was sentenced to suffer death as the legislature provided that whoever is convicted for the offence of Robbery with Violence contrary to Section 296(2) that be the penalty to be imposed. The death penalty in Kenya which is mainly prescribed for the offence of murder C/S 203 of the Penal Code, Robbery with violence and to reason is only to be imposed in only the most exceptional and most appropriate circumstances. In the case of Francis Kariuki Muruatetu & Another v Republic (2017) eKLR the Supreme Court declared the mandatory death sentence being unconstitutional for it deprives the trial courts to exercise discretion before imposing a fair and just sentence appropriate to the circumstances of the offence. Part of the ratio-desidendi of Muruatetu case is that the death sentence should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by other means. See also the decision in Godfrey Ngotho Mutiso v R Cr. App NO 17 of 2008 (Mutiso Case) in which the court of Appeal appreciated that any sentence which deprives the trial court an opportunity to take into account aggravating and mitigating factors fails the test of a right to a fair trial and equal participation in the decision making process likely to impact negatively the right to life of a convict for that matter. It is well established in domestic law and in international human right law that the right to a fair trial included all stages of the criminal process, including sentence and appeal. In many capital cases, the sentencing stage will be as important, if not more important, than the trial itself. In addition to deprive and individual of his life without “due process” would be unconstitutional. From the totality of evidence in this case and having heard the arguments and submissions by both parties in the context and text of the above guidelines the initial death penalty be and is hereby reviewed set aside and substituted with a custodial sentence of 18 years imprisonment with effect from 8th February 2023.

16. It is so ordered.

DATED AND SIGNED AT ELDORET THIS 9TH DAY OF NOVEMBER, 2023In the Presence ofMr. Okaka for the StateR. NYAKUNDIJUDGE