[2017] KEHC 3206 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

CRIMINAL APPEAL NO. 16 OF 2017

ELMASI LELEMUSI...............................................APPELLANT

versus

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

(Being an appeal from the original conviction and sentenceinMaralal

Principal Magistrate’s Court CriminalCase No. 762 of 2013

by Hon. B. S. KHAPOYAAg Senior Resident Magistrate

on 16th day of July 2014).

JUDGMENT OF THE COURT

1. ELMASI LELEMUSI, the appellant, was charged before the Principal Magistrate’s Court at Maralal with two counts. On the first count he was charged with the offence of attempted robbery with violence contrary to section 295 as read with section 297(2) of the Penal Code. On the second count he was charged with the offence of being in possession of firearm contrary to section 89(1) of the penal code. He pleaded guilty to the second count whereupon the trial court sentenced him to 7 years imprisonment. His trial proceeded before that court in respect to the first count. After that trial the appellant was convicted and was sentence to death.

2. The appellant has appealed to this court against his conviction and sentence. In the case ERIC ONYANGO ONDENG –V- REPUBLIC [2014] eKLR the Court of Appeal had this to say in respect to the first appellant’s duty:

“.......... the first appellants court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (see OKENO V REPUBLIC (1972) EA 32).”

3. The prosecution’s evidence was that the appellant with another person not before court on 21 December 2013 at around 2 to 2. 30 p.m. went to Kisima at the business place of Veronica Wairimu Mwaniki (PW 1) (hereinafter referred to as Veronica). Veronica was running a wine and spirit shop, an Mpesa outlet and she was an agent for Kenya Commercial Bank. In that business premise there was Veronica, her daughter Booda Amran (PW 2) (hereinafter referred to as Booda), Ibrahim Kipkemboi (PW 3) (hereinafter referred to as Ibrahim and Arumoto. Arumoto was the security guard of the business whilst Ibrahim was a customer who was in the process of transacting an Mpesa transaction.

3. Veronica asked Arumoto to inquire from the appellant and his companion what assistance they needed. It seems Arumoto did not get a response from the appellant and his companion and accordingly Arumoto requested them to leave the shop. The two went out. In a short while the appellant alone returned into the shop. The appellant who was armed shot into the roof of the shop, according to Booda and Ibrahim. Veronica said:-

“He (appellant)shot on the walls of my business premises ....... He shot at the wines and sprits counter. He shot thrice it destroyed my premises. The accused (appellant) person shot twice.”

4. The appellant attempted to enter into the selling counter but Ibrahim held him from his behind and the firearm that the appellant was holding fell down. Arumoto picked it and threw it to the counter. Booda closed the door of the premises and with the assistance of the members of the public the appellant was subdued and later was re-arrested by the police.

5. While Ibrahim held on the appellant the appellant attempted to remove his sword from his Waist. Veronica Began to struggle with the appellant and as a consequence she got cut on her fingers on the left thumb and the appellant bit veronica on her left hand.

6. The doctor who examined Veronica found that she had a cut on the right thumb and a minor cut on the left hand. He found the probable weapon to be sharp object. On the doctor being asked why Veronica in evidence said she had a cut on the left thumb yet the doctor on examining her found she had a cut on right thumb he said:-

“The patient (Veronica) may not have knowledge of the anatomy.”

7. A ballistic report by Alex Mdindi Mwandawiro revealed that the firearm, AK 47, which the appellant had was capable of being fired and the ballistic expert therefore confirmed that it was firearm in terms of the Firearms Act.

8. In his unsworn defence the appellant stated that on the material date he was from Sirata Lolkoti and he was leading his animals to the market at Lekuru. At 7. 30 p.m. he arrived at Kisima. He passed by an Mpesa stall while he was armed with a firearm. He went to the Mpesa stall but before he could reach the counter a person held him by the waist while another person pulled the firearm from him. He struggled with these people to scare them he fire into the ari. Immediately thereafter he was hit and he became unconscious.

9. Appellant in his petition has stated that his plea of guilt on the 2nd count, the charge of being in possession of firearm, was equivocal because the court failed to provide him with an interpreter. Learned counsel Ms. Murande for the appellant submitted that when the trial court took plea on the 2nd count it then went on a break and when the court resumed its sitting and the appellant confirmed the facts of the case were correct the interpreter was not present.

10. Learned Principal Prosecution Counsel Mr. Tanui in response submitted that appellant’s counsel erred in not noting that when the trial court in the resumed sitting it recorded the coram to be the same as before.

11. My perusal of the record of the trial court’s proceedings reveal that the appellant on the 2nd count being read out on 23rd December 2013 stated:-

“It is true”

When he said that it is was true there was an interpreter of Kisamburu by the name Regina. After appellant pleaded guilty the prosecutor requested for time to avail the gun which was to be an exhibit. The trial court’s proceedings show that the matter was slated to be mentioned later at 11. 00 a.m. that same day. At 11. 00 a.m. the trial court recorded in the proceedings “coram as before”. Learned Counsel Mr. Tanui was correct in his submission when he stated that since the earlier coram included an interpreter called Regina later when the trial court recorded “coram as before” was indicative of presence of Regina the interpreter as well as the Learned magistrate. It is for that reason that ground of appeal is rejected. The appellant’s plea on 2nd count was unequivocal.

12. The appellants other ground is that the prosecution’s evidence did not support the charge of attempted robbery with violence.

13. Learned counsel for the appellant did not elaborate this ground while submitting. It is therefore unclear what the prosecution’s evidence, according to the appellant was lacking. In the case SAMMY MAINA KARANJA V REPUBLIC [2003] eKLR the court set out what constitute attempted robbery as follows:-

“To constitute an attempted robbery the appellant must be shown to have assaulted the complainant and specifically with the intention to steal something and that at oar immediately before or immediately after the said assault he used or threatened to use violence in order either to obtain the thing intended to be stolen or to prevent or overcome resistance to its being stolen. No intention to steal was proved before the court and neither was there proof or the use or threat to use violence.”

14. The prosecution’s evidence was that the appellant shot the roof of the premises where Veronica ran her business. After shooting the appellant went towards the counter of that business, his attempt of what he intended to do, that is to steal was thwarted by Ibrahim who grabbed him and caused him to release the firearm. In the cause of the struggle that ensued appellant injured Veronica. All the constituents of attempted robbery were proved by the prosecution.

15. Appellant in his other ground of appeal stated that the prosecution relied on inconsistent and contradictory evidence.

16. It is important to state that it is humanly impossible to get more than two people who witnessed a scene to give exact evidence of that scene. This human frailty was recognised by the court of appeal in the case PHILIP NZAKA WATU V REPUBLIC [2016]eKLR where the court stated:-

“However, it must be remembered that when it come to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because hum recollection is not infallible and no two people perceive the same phenomena exact the same way. Indeed as has been recognised in many decision of this court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case the nature and extent of the discrepancies and inconsistencies in question.

In DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V THE REPUBLIC, CR. APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in the evidence and colluded as follows, a view we respectfully adopt:

“in evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentence and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

17. The court of Appeal also in the case ERICK ONYANGO ONDENG V REPUBLIC [2014] eKLR and this to say:-

“As noted by the Uganda Court to Appeal in TWEHANGANE ALFRED VS UGANDA Crim. App. No. 139 of 2001 [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As the court put it:

“with regard to contradiction in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarirly lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

18. The inconsistencies pointed out by leaned counsel for the appellant are anything but grave. Veronica talked of recovery of 3 spent cartridges. The investigating officer talked of recovery of 4 spent cartridges. That inconsistency does not go to the root of the prosecution’s evidence. It is minor. And similarly is the evidence of Veronica that the appellant injured her on the left thumb but the doctor on examining her found that it was her right hand thumb that was injured. The doctor explained that inconsistency to probable confusion on the part of Veronica of her anatomy. Nothing therefore turns on those inconsistencies.

19. The trial court, contrary to what was argued on behalf of the appellant, indicated the language used by each witness who testified, including the language used by the appellant in his defence.

20. Further the appellant’s counsel erred to argue that there was no Exhibit Memo Form of the recovered cartridge and the fire arm. That is not correct. The Memo Form was exhibited at the trial as Exhibit number 5.

21. The trial court adequately considered the appellants defence but rejected it. That rejection of that defence cannot be faulted. That defence was in my view an afterthought because it was not put to the prosecution’s witnesses by the counsel who represented the appellant at the trial.

22. The sentence meted out to the appellant by the trial court was in accordance with the Law. Accordingly there being no merit in the appellant’s appeal against conviction and sentence the same is dismissed. The trial court’s convict is upheld and the sentence is confirmed.

DATED and DELIVERED at NANYUKI this 4TH day of OCTOBER 2017.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant: Elmasi Lelemusi ………………………

For the State: ….......................................................

Language: ……………………………………….

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE