[2023] KEHC 26017 (KLR)

Eremete alias Kichwa v Republic (Criminal Appeal E037 of 2023) [2023] KEHC 26017 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26017 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E037 of 2023

RN Nyakundi, J

November 29, 2023

Between

Festus Eremete Alias Kichwa

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. D. Orimba in Lodwar law court Cr. Case No. E063 of 2022)

Judgment

Coram: Before Justice R. NyakundiMr. Kakoi for the State 1. The Appellant was charged with 2 counts of robbery with violence and attempted rape. The first count was 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 24th day of January, 2022 in Turkana central sub-county within Turkana County jointly with others not before court robbed Kennedy Gitonga of two Techno mobile phones make Techno Camon and Techno 313 all valued at Kshs. 15,500/= and immediately at the time of such robbery used actual violence to the said Kennnedy Gitonga. 2. On the second count, 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. The particulars of the offence were that on the 24th day of January, 2022 in Turkana central sub-county within Turkana County jointly with others not before the court robbed FN of two Techno Camon 15 mobile phones valued at Kshs. 16,000/= and cash of Kshs. 150/= and immediately at the time of such robbery strike the said FN.

3. The appellant was charged with an alternative count of handling stolen goods contrary to section 322 (1) (2) of the penal code. The particulars of the offence were that on the 24th day of January, 2022 at Lodwar township in Turkana Central sub-county within Turkana County, otherwise than the cause of stealing dishonestly retained one mobile phone make Techno Camon 15 valued at Kshs. 16,000/=the property of FN knowing or having knowledge or having reason to believe it to be a stole goods.

4. The appellant was equally charged with a third count, being the offence of attempted rape contrary to section 4 of the sexual offences Act No. 3 of 2006. The particulars of the charge were that on 24th January, 2022 in Turkana central sub-county within Turkana County, the appellant intentionally and unlawfully attempted to cause his penis to penetrate the vagina of FN without her consent.

5. In the alternative he was charged with the offence of committing an indecent act with an adult contrary to section 11(A) of the sexual offences Act No. 3 of 2006. The particulars of the offence were that on the 24th day of January, 2022 in Turkana central sub-county within Turkana county jointly, intentionally touched the breasts of FN with his hands against her will.

6. The Appellant was convicted of the three counts and sentenced to 25 years imprisonment for count I, 25 years imprisonment on count II and 7 years imprisonment for count III.

7. 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 prosecution was marred by incurable irregularities as the complainant of the case never appeared to testify.ii.That the appellant was convicted without arraigning other suspects to court.iii.That the punishment meted out was harsh and cruel.

8. Reasons wherefore the Appellant prayed that the appeal be allowed, a retrial be decreed or and the conviction and sentence be set aside.

9. Both parties filed written submissions in support of their Case.

Appellant’s submissions 10It was the appellant’s submission that the three counts he was charged with were not fully substantiated. That the prosecution did not prove its case to the required standards.

11. The appellant submitted that he was convicted to serve 7 years for the offence of attempted rape but looking at the facts of the prosecution’s case, the evidence against the accused person was wanting. That the complainant testified that the culprit was looking for money which supposedly was hidden somewhere. He submitted that such a conviction without sufficient evidence was a sham and an afterthought. He prayed that the count be dismissed in its entirety.

12. On the count of robbery with violence, it was the appellant’s submission that the trial was erroneous given that the complainant was missing. He submitted that the case was not proved beyond reasonable doubt. Further, it was submitted that the identification was shoddy and immaterial.

Respondent’s submission 13. On count I, the prosecution’s counsel submitted that the complainant did not testify. That the phone that was stolen from him was never recovered. Counsel concluded that the conviction was unsafe and submitted that the appellant may be acquitted.

14. It was submitted for the respondent that count 3 was not sufficiently established. That the act of touching her breasts without her consent amounted to indecent act. Counsel urged the court to substitute the conviction of attempted rape to one of indecent act with an adult.

15. On sentencing, counsel urged the court to retain the 25 years in respect of count 2 and regarding count 3, in case the court agrees with the state, the sentence should be less than 5 years.

Analysis And Determination 16. 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.

17. 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 three counts to the required standard.

Count I 18. 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, oriv.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”

19. .The standard of proof statutorily required as per section 107 (1) & 108 of the Evidence Act is one preponderance of probability. Section 107 (1) of the Act does not speak of anything about prove beyond reasonable doubt though the degree of proof required of a criminal case in Kenya is higher than preponderance of probability. In Black’s Law Dictionary, 1891 6th Abridged Edition, 1991, and the same is as follows;“ Preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it, that is evidence which as a whole shows that the fact sought to be proved is more probable than not.”

20. As for Glanville Williams in his book ‘Criminal Law’ Second Edition has opined that the phrase ‘reasonable doubt’ is virtually indefinable. This very concept has adopted by Granville Williams is as explained by Justice Cookbur that;it is business of the prosecution to bring home the guilt of the accused to the satisfaction of the minds of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism. There must be doubt which a man may honestly and conscientiously entertain.”

21. The court in Shivaji Sahabrao Bobade & Others V State Of Maharashtra (air 1973 SC P.2622) made the following observations;Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expenses of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis n the contemporary context of escalating time and escape. The judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt, which runs through the web of our law, should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go, but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice would then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author (Glanville in proof of guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals becomes general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated ‘persons’ and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons, it is true to say, with Viscount Simon, “miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.”

22. A thorough and competent investigation of the record shows meaningfully that the ordinary criminal law burden of proof of beyond reasonable doubt was never established by the prosecution to firmly convince the trial court of the Appellant’s guilt. In this context the beyond reasonable doubt as a fundamental value underpinned in the constitution remained the horizon of the unknown when it comes to the determinants in count 1. The owners of proof is discharged by the state and on the facts presented at the trial. The doubt in favour always is that of the accused or the defendant in a criminal trial. If the trial court really appreciates the legal features of proof beyond reasonable doubt as an ancient and honoured aspect of our criminal justice system then the findings of guilty and conviction against the appellant on count 1 should not have resonated with his decision as it did in his judgment. The road map to that decision was founded on sinking sand given the fact that the complainant did not testify and the phone that was stolen from the complainant was never recovered. Indeed what is beyond reasonable doubt as I conceive from the judgment of the trial court may well be his own invention. Disappoint on which the prosecution disagreed with the trial court and virtually I also question it. All I can safely say given the state of the evidence is that something changed midstream or earlier to prompt the court to use the concept of beyond reasonable doubt instructions to enter a finding of guilty and conviction on this very count essentially unproven by the state to the detriment and prejudice of the appellant. In the case of Miles .v. United States 103U.S 304 the court was emphatic on what really constitutes reasonable doubt in criminal cases that: “the prisoner’s guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt, unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests.”

23. In my analysis of the record, this particular count was not proved to the required standard of beyond reasonable doubt within the ambit of the law as prescribed in the above case law and as such to affirm the guilt and conviction of the appellant is absolutely unsafe. The best thing which shall ever happen to the appellant is to set aside the illegal conviction and the corresponding sentence.

Count II 24. 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.

25. 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.”

26. 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.

27. 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, orv.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)

28. Based on the evidence of PW1, PW3, PW4 and PW2 who led evidence to what unfolded on the material night, it is clear that PW1 was assaulted and in the process robbed of her phone and money.

29. PW3 testified that the complainants were attacked while in town on 24th January, 2022. The two complainants lost their personal possessions like phones and cash. The witness also established that FN was indecently assaulted by the accused.

30. PW4 further testified that while on duty on the 25th January, 2022 at the report office, he received a report from the complainant alleging that they had been attacked by 4 boys and their three phones stolen. The report was booked. The police officers on patrol were called out and the accused in court was arrested at the scene and later charged.

40On identification, the complainant stated that she was able to properly identify him given that the accused moved very close to her. It was also proved that on the 24th January, 2022 the mobile phone was stolen from the complainant PW1 during the robbery. Thereafter the same mobile phone positively identified by PW1 was found in possession of the Appellant. There is no question about the identity of the mobile phone and of the fact of it having been stolen from the complainant. The Appellant in his defence did not give evidence on how he came to possess the stolen property which to all intends and purposes was retained by him without any reasonable cause. The law is that if a person is in possession of stolen property recently after the theft or robbery it lies on his or her to account for his or her possession. If he or she fails to account for it satisfactorily he is reasonably presumed to have come to his possession dishonestly. These are the surrounding circumstances of this appeal. Logically there is as much reason to apply the doctrine of recent possession as to both the robbery and receiving was clearly established by the prosecution witnesses.

41. I wholly agree with the findings of the trial court that the elements of robbery with violence were properly established beyond reasonable doubt and as such the conviction was proper. At an opportune time I would take the liberty to address the issue of sentence with regard to this count.

Count III 42. The accused person was accused of attempted rape in this count.

43. Section 4 of the Sexual Offences Act provides:Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life.”vi.In Abraham Otieno v Republic [2011] eKLR; Kisii H.C. Criminal Appeal No. 53 of 2009, Asike-Makhandia, J (as he then was) defined the ingredients of attempted rape as follows:vii.For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards the goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interveniens, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him to stop, again that would be good evidence of attempted rape.viii.From the foregoing, it is evident that for one to be convicted for the offence of attempted rape, the intention to rape must be manifest varying from case to case. In the present case and the record together with the parties’ submissions, the appellant was looking for money. The intention to rape did not clearly come out. I allow the appeal on this count only to the extent that I quash the conviction for attempted rape and substitute it with a conviction for an indecent act with an adult contrary to section 11A of the Sexual Offences Act.

Sentence on count 2 and 3 in which conviction has been affirmed by this court 44. In the first instance I focus on the offence of robbery with violence in count 2. 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.”

45. In the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaption of the offender;(h)any other factor that the Court considers relevant.”In my considered view, the accused mitigation ought to count in sentencing. The objectives of sentencing should be considered in totality. In this regard, section 10 of the Sexual Offences Act gives room for the exercise of judicial discretion.

46. Further, the sentencing objectives in Kenya have been captured in the Sentencing guidelines 2023 to be the following: -1)Retribution: to punish the offender for his/her criminal conduct in a just manner.2)Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3)Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.4)Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.5)Community protection: to protect the community by incapacitating the offender.6)Denunciation: to communicate the community’s condemnation of the criminal conduct.7)Reconciliation: To mend the relationship between the offender, the victim and the community.8)Reintegration: To facilitate the re-entry of the offender into the society.

47. In the case of Shadrack Kipkoech Kogo –v- R Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal firmly set the pace on the jurisprudential guidelines between the judicial discretion of the trial court and the review jurisdiction exercised by an Appeals Court on sentence. Thus sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –v- R (1989 KLR 306)

48. Those were the principles enunciated by the same court of appeal in Bernard Kimani Gacheru – v – Republic [2002]eKLR that:It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed the sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

49. I have considered the objectives of sentencing in their totality and I do make the following findings:Having regard to the circumstances of this particular case, the appellant had no previous conviction relevant to the offences in question which he was duly convicted by the trial court. On the other hand the mobile phone being a substantive asset of the robbery with violence was recovered by the police officer as identified positively by the complainant. This was immediately soon after the robbery. It must have been restituted to the complainant as required by law. In my considered view there are compelling reasons which render the sentence imposed on the appellant manifestly excessive and unjust. In closing the sentence on count 2 be and is hereby reviewed from that of 25 years imprisonment and substituted with 15 years’ imprisonment due to other aggravating factors during the commission of the offence by the appellant. Secondly in examining the material before the trial court and as reviewed by this court in so far as the third count is concerned which was downgraded to indecent act under the Sexual Offences Act, the appropriate circumstances calls for a reduction of sentence to a custodial period of five (5) years for the offence. I take the view that society could not harbour and nurse such behavior of the appellant as that is against everything that an orderly society demands. That of waiting innocent victims going about their business, inflicting bodily harm and further to carry out an attack against their right to privacy must receive condemnation by this court. The fact that attempted rape was reduced with that of indecent act does not diminish the culpability of the appellant for he made his intentions known of committing unlawful act of sexual assault against his victim. Why on earth will a man be desirous of placing his hands in the breast and touching them menacingly if not for the very reason of preparing to commit a felony of rape. The appellant is lucky to get away with an indecent act given the typology of definition of offences and the standard of proof of beyond reasonable doubt. This kind of gender based violence is sufficient to justify a sentence for 5 years imprisonment for that indictment. Sometimes sin is sin and I believe once proven in law it should be punished appropriately. On the first count this court went on to note that it was not open to the trial court to convict and sentence the appellant in absence of cogent evidence. The same as earlier ordered is quashed on both limbs of the appeal. Finally in the case at bar it now remains for me to state that the conviction on count 2 and 3 is affirmed with variations as upheld in count 3. The issue on sentence has been reviewed as stated in this judgment and the same shall run concurrently.

DATED AND SIGNED AT LODWAR THIS 29TH DAY OF NOVEMBER, 2023In the presence of;Mr. Kakoi for the stateAppellant in person............................R. NYAKUNDIJUDGE