[2017] KEHC 2246 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT CRIMINAL APPEAL NO. 99 OF 2014

EPHANTUS GAKINDU NYAGA...............APPELLANT

V E R S U S

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

J U D G M E N T

(Appeal from the conviction and sentence in Nyeri C.M. Criminal Case No. 491/2013 Hon. C. Wekesa Ag. R.M.)

Ephantus Gakindu Nyaga was charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code. It was alleged that on the 29th day April, 2013 at Kangemi Area, in Nyeri County with others not before the court, he robbed Peter Mugambi Kuhora of Ksh. 3,400/=, and a Samsung Phone all valued at Ksh. 11,400/= and immediately before or immediately at the time of the robbery, used actual violence to the said Peter Mugambi Kuhora.

Plea was taken on the 2/7/2013 and the accused person pleaded not guilty. The matter proceeded for hearing on 23/9/2013.

The prosecution called four witnesses. The accused person was placed on his defence after being found to have a case to answer. The judgment was delivered on 16/10/2014. The trial Magistrate found that the prosecution had proved its case beyond a reasonable doubt, convicted and sentenced him to death.

Aggrieved with the court’s findings he filed grounds of appeal on 24/10/14 but amended them on 8/9/2017 via a substitution under s. 350(2) (v) of the Criminal Procedure Code.

His contention is that the trial magistrate gravely erred in both law and facts when she convicted him: -

1) By relying on the evidence of identification yet failed to find that the same was not supported by a cogent and prompt first report.

2) Yet failed to find that the evidence adduced was scanty contradictory and inconsistent.

3) Yet failed to find that no investigations were done in the case.

4) By shifting the burden of proof against the defendant.

His prayer was that the appeal be allowed, the conviction quashed and the sentence set aside.

Ms. Jebet appeared for the state and the appellant was represented by Mr. Warutere.

On the 1st and 2nd grounds on identification and insufficient and contradictory it was argued for the appellant that the complainant had no identified his attackers.

1) That there was no evidence to support the identification by recognition

2) That the complainant did not identify his attackers in his 1st report to the police and therefore his evidence that he could identify them later was suspect.

3) That even in his testimony he spoke about suspecting the accused person.

On 3rd issue it was argued that the investigating officer gave no evidence of any investigations that were conducted to lead to the arrest of the appellant, especially considering the passage of time from the date of alleged offence on 29/4/2013 to the date of arrest of the accused on 1/7/2013.

On the 4th issue the argument was that the appellant ought not to have been put on his defence on the scanty evidence before the trial magistrate, and by so doing she had shifted the burden of proof on the appellant. And even then, that the appellant had a plausible defence which the trial court had not considered.

The appeal was opposed. The prosecution’s submissions were that the appellant was well known to the complaint who had simply recognized him at the time of the robbery;

That the evidence given by the prosecution’s witnesses was consistent and sufficient to sustain the conviction and sentence.

That investigations were conducted leading to the arrest of the appellant

That there was no evidence of any grudge between the appellant and the complainant.

That there was no shifting of the burden of proof because the appellant admitted being known to the complainant hence there was no mistaken identity.

That the ingredients of the offence of robbery with violence were proved beyond a reasonable doubt.

In response to these submissions, Mr. Warutere submitted

-That the appellant only admitted to being known to the complainant but not to committing the offence.

-That if the complainant had truly recognized the appellant at the scene he would have given his name in his 1st report to the police.

-That the arrest of the appellant showed that he had not disappeared anywhere as alleged by the prosecution he had simply been rang on his mobile phone, showed up and was arrested.

As the 1st appellate court I am bound to review and re evaluate the evidence and draw my own conclusions always bearing in mind that I never heard or saw the witnesses. Upon hearing the appeal, the court is empowered to act as per the provisions of s. 354 of the CPC.

The Evidence

The complainant testified that at the material time he was a doctor at the Provincial General Hospital, Nyeri. He had left work about 9:00p.m. It was raining so he had waited for the rains to subside. This happened around 11:00pm. A friend gave him a lift and dropped him ~ 200m from his home, reversed and went back.

It was then that he saw a group of 8 people advancing towards him. He immediately told them to take the money he had and not to hurt him. That there was light but one of them whom he named as Ephantus Kimotho Nyaga ordered him to stop while at the same time shining a torch towards him. Ephantus had a slasher and when he got close to him he hit him on the head with it.

At the same time the others were ransacking his pockets. He was bleeding profusely. The others ran away leaving two youths to guard him and since they were not paying much attention to him, he was able to get away. Even as he was running away he could hear Nyaga’s voice shouting shoot him! shoot him! as the followed him in hot pursuit. He was now calling out to his brother to open up for him. His brother did not do so and he was forced to jump over the neighbour’s fence. This brother (P.W.2) and his neighbour one Mathenge came out and gave me first aid by pouring salt on the bleeding wound. They called for assistance from the Provincial General Hospital and the police station. The police arrived immediately and he was taken to Provincial General Hospital, Nyeri where he was admitted. He produced the treatment notes from the hospital, the P3 form, and a receipt for the purchase of his mobile phone.

He said he was able to identify the accused who was in a black coat and a cap, because there was light from the street.

He had known the accused for 6 months three of which the accused had worked for him.

In cross examination the complainant told the court that the incident happened around midnight of the night of 28th & 29th April, 2013, that he had specifically seen and recognized the appellant, and had told the police the same. However, he had not told his brother (P.W.2) and Mathenge his neigbhour that one of the assailants was the appellant.

Referred to his own statement to the police following the robbery, it turned out that he had not told the police that he knew the appellant very well. His statement simply stated that he suspected 2 persons Ephantus Gakindu and Stephen Maina. He also said he saw several youths when he was being robbed two of whom had remained behind after the robbery. Asked to read his statement once more, it stated that he had told the police that as he walked to his house on the fateful night he saw a group of 8 men who were armed. They attacked him and one cut him with a slasher on the head, and that out of the 8 men, he was suspecting Nyaga Gakindu and Stephen Maina. He conceded that there was no full description and that if he had self-recorded the statement he would have “written the whole story and given the description”.

P.W. 2 John Mwangi Muhora testified that on the material night between 11:00p.m. and 12:00a.m. he heard dogs barking and people screaming. He heard the complainant’s voice and put on the lights in his house. He saw there were people following the complainant. He saw these people retreat on seeing the lights but he had already seen them two of them were approximately 4m away and he identified one of them whom he said was the accused in the dock, a person who had worked for him before.

He found his brother who had a cut on the head. He had also been beaten on the right arm with an iron rod.

Neighbours came to assist. The complaint told him he had been robbed of a phone, money and keys. They took him to the Provincial General Hospital, Nyeri where he was treated and they returned home the following day.

In cross examination, PW2 told the court that when he put on the lights in his house he was able to see up to the gate. That even after he identified the appellant as one of the assailants he never told the complainant or the police. He denied that they had brought the charges against the appellant to cover up for one Stephen Maina. He said he gave the police a description that the appellant was in a long coat, a muffin and was carrying a slasher. He said that upon putting on the lights, he saw the appellant and identified him when he looked at him, as his partner looked away, that he told this to the neighbours.

P.W.3 Dr. Lucile Niyinkunda produced the P3 on behalf of Dr. Alice Wambui. He said that the complainant had been attacked by a group of people. That the weapons used were a metal bar and fists. The patient sustained a deep cut on the head which required stitching but luckily he had no fracture. He had a swollen right arm. He was treated. Degree of injury was assessed as harm.

In cross examination he said when the patient was initially treated he did not give a list of names of his attackers. That it was not the work of the hospital to ask about who the attackers were but the work of the police.

P.W. 4 No. 72539 P.C. Ferdinand Kiragu of Nyeri Police Station was the investigating officer. He testified that on the night o 29/4/2013 he was among the officers who responded to the complainant’s distress call. They went to Kangemi area and took him to hospital, and went back to look for the robbers. They never found them.

Later the complainant and his brother recorded statements where complainant said he had identified the appellant and one Stephen Maina during the attack.

On 1/7/13, he arrested the appellant at Nyeri stage and charged him. When cross examined he told the court that the complainant had recorded that he had been attacked by 8 thugs. He said that it is while doing investigations that he found out the witnesses knew the appellant and many saw him on the night of the robbery. He further stated that the complainant mentioned the appellant and one Stephen Maina, a son to P.W.2. He said that for an investigating officer the first report is what he would rely on to identify the assailants but in this case the complainant’s first report was that he had been attacked by thugs. That it was only in the statement that the complainant had mentioned the appellant and the said Stephen Maina.

In his defence the appellant made a sworn defence. He stated that on 29/4/13 he was employed by one Baba John, a Mr. Mathenge. On 1/7/2013 he was at Nyeri Stage when he received a call from a person who enquired where he was, and they agreed to meet at the 4NTE booking office. When he reached there he was arrested and put in a vehicle where he found the complainant and the driver.

The complainant asked him where he had taken his phone.

He was taken to the police station where he was charged with this offence.

He said he had worked for the complainant for 6 months from Jan. 2012 but left because he was not being paid. He said that the complainant had ordered him to return or risk a thorough beating. He believed that this charge is the beating the complainant had promised him. In cross examination he said that the complainant knew him well, and he knew the complainant. That having stayed with the complainant for 7 months it would not be hard to identity him. He however denied committing the offence. He said he lived at Kangemi. That though the incident happened in the same area, he was in his house that night. He produced the O.B. extract on the complainant’s first report in support of his defence.

The offence of robbery with violence is committed when the offender steals anything from the victim in any of the following circumstances; 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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, ….

In her judgment the trial magistrate found that the offence of robbery with violence c/s 296(2) had been proved because there was evidence that the complainant was robbed of his property, by eight people, who were armed with dangerous weapons and caused him bodily injuries. She that found the accused person was recognized by P.W.1 and P.W.2. and that he had conceded to being known to the two witnesses. She was satisfied that even though the P.W. 1 had not said so in his first report, and both he and P.W.2 had not given any description of the attackers to the police to the police, the prosecution had demonstrated that the complainant had in his statement given the names of two suspects which included that of the appellant, and that that was sufficient to prove that the appellant was one of the robbers who accosted the complainant on the material night.

She dismissed his defence as an afterthought.

Issues

As surmised from the grounds of appeal;

Did the prosecution prove their case beyond a reasonable doubt to warrant the conviction? Was the evidence of recognition sufficient to support the conviction of the appellant? Who were the assailants? Did the complainant and his brother identify them?

Analysis

Evidence of identification or recognition of a suspect, requires great care in its examination. In Maitanyi vs. R (1986) KLR 198 the court made this observation,

‘the strange fact is that many witnesses do not properly identify another person even in broad daylight. It is at least essential to ascertain the nature of light available, what sort of light and its size and its position relative to the suspect … to test the evidence with the greatest care. It is not a careful test if none of these matters are unknown because they were not inquired into…’

The complainant alleged there was a street light that enabled him to see the appellant. There was no description of that light. How far it was, what kind it was, where the appellant was in relation to the light etc. PW2 alluded to using the light from inside the house to see up to the gate, where he testified he was able to see the appellant. He did not tell the court what light was coming from the house, how far it was from the gate. In any event this testimony appears to contradict PW1’s who says that after he was robbed two young men were left to watch over him as the rest disappeared. When he escaped from these two, they did not go after him. He actually stated “They were not in pursuit”. Where would PW2 had seen the appellant?

Secondly, he said as he ran he heard the appellant shouting, shoot him! shoot him! And was able to identify his voice as he” knew it very well”. He does not say in what language this was said. The appellant having disappeared gang immediately after the robbery, it is not clear where he showed up from to say that, or how far away he was. He also never said he had noticed firearm with the robbers.

This very important piece of evidence was not supported by the initial report. This report to the police has been held to be key in the identification of suspects of crime. It is the report in which the reportee is expected to give descriptions of the attackers to enable their apprehension, and where the reportee claims to know them, to name them.

To demonstrate this, it is important to lay out the complainant’s initial report; -

“OB. No. 29/29/4/13

Time – 1100Hrs

Robbery Report– to the station is one Peter Kuhora c/o mobile phone 0723343759 and a resident of Kangemi area within Nyeri County and alleges that today 29/4/13 at around 0100a.m. while near his house after parking his motor vehicle a group of around nine thugs confronted him while armed with crude weapons like rungus, pangas and machetes and stole from him cash Ksh.3000/=, mobile phone make Samsung valued at Ksh 9000 and bunch of keys (house & motor vehicle). Reportee sustained cut on head, both hands and complains of pain on shoulder. Now needs police assistance for the same”

The report was made at 1100a.m. the morning after the incident after the complainant had come from hospital. The glaring absence of the appellant’s and the other suspect’s name in this report is shocking to say the least. Why, if they identified him as they claim the previous night?

In Maitanyi vs. Republic(1986) KLR 198– this issue was addressed.

The court stated;

“There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid or to the police”

The evidence that the appellant’s’ name was in the statement recorded later can only be an afterthought and unreliable. The trial magistrate misdirected herself by accepting that evidence as proof that the complainant had indeed identified the appellant.

This was the holding in Maitanyi where the court stated;

“In this case no such inquiry of any sort was made. If a witness received a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identity or recognize the person, then a later identification or recognition must be suspect, unless explained. It is for trial magistrate to inquire into these …………”

The trial magistrate was obligated to examine the evidence and to find explanation as to why the complainant did not name either the appellant or the said Stephen Maina in his initial report yet he was certain that he had seen him among the assailants. Or why the two PW1 and PW2 had not mentioned to each other or the neighbours that one of the assailants was their former employee, or to the police who responded quite readily to the distress call? Why send the police on a wild goose chase when the police would have gone in search of the appellant that same night? All these questions render the evidence of P.W.1 and P.W.2 as to the identity of accused person on the night of the robbery truly doubtful and these doubts ought to have been resolved in favour of the appellant

In Simiyu & Anor. Vs. Republic [2005] KLR 192the court was emphatic:-

“In every case in which there is a question as to the identity of the accused, the fact of their having been a description given and terms of the description are matters of the highest importance… the omission on part of the complainants to mention their attackers to the police goes to show that the complainants were not sure of the attacker’s identity.

The truth is that the complainant and his brother had two suspects in mind, the appellant, and PW2’s son. And that is what they put in their statements.

The complainant’s first report further dents his credibility.

It speaks of 9(nine) attackers not 8. He describes the attackers as armed with rungus, pangas and machetes in his evidence he speaks of only one guy, the appellant being armed with a slasher. Even the amount of money allegedly stolen from him and the value of his phone are different in his initial statement and his evidence. The time of the offence is 0100a.m and not between 11:00p.m. and 12. 00 midnight. In the initial report, he is not dropped by a colleague but is attacked after he has parked his car. The latter fact changes the whole scenario because he is no longer walking 200m to his gate, he has parked his car. What is the court to believe? In any event why would his colleague bring him home late at night, all the way, then leave him200m away from his gate, and leave before the gate has been opened or someone has put on the lights in the house?

That brings us to the issue of investigations. The investigating officer was also the arresting officer. His testimony was about his responding to the distress call, and arresting the appellant. He did nothing to verify the complainant’s report. He relied on the evidence of identification by the complainant and his brother, while confirming that the complainant reported having been attacked by thugs, without a specific mention of the appellant. He did not give a single reason why he arrested the appellant.

The trial magistrate found that the appellant’s admission that he was known to the complainant and PW2 corroborated the complainant’s testimony of recognition. The onus is on the prosecution to prove its case beyond a reasonable doubt and not for the defence to fill in the gaps for them.

Having considered the totality of the evidence that was placed before the trial magistrate I do find that;

1. The failure by the complainant to name the assailant who he alleged to have known before in his first report to the police made his evidence of recognition doubtful.

2. There first report, the statements to the police and the testimony in court were inconsistent and contradictory to the extent that they dented the credibility of the complainant.

3. The trial court failed to examine the evidence of identification/ recognition to the required standard Maitanyi v R

4. The prosecution had not discharged its burden of proving the charge against the appellant beyond a reasonable doubt.

4. The conviction was not supported by the evidence on record.

5. The conviction is quashed, the sentence of death is set aside and the appellant is to be set at liberty unless otherwise legally held.

Dated, delivered and signed in open court at Nyeri this 8th Day of November 2017.

Teresia Matheka

Judge

In the presence of;

Court Assistant Hariet

Appellant

Ms Gicheha holding for Ms Jebet for State