[2013] KECA 65 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: ONYANGO OTIENO, AZANGALALA & KANTAI, JJ. A)

CRIMINAL APPEAL NO. 350 OF 2011

BETWEEN

ERNEST SHIEMI ................................................................ 1ST APPELLANT

CALYSTUS ANZETSE …................................................... 2ND APPELLANT

AND

REPUBLIC …................................................................................RESPONDENT

(APPEAL FROM A JUDGMENT OF THE HIGH COURT OF KENYA AT

KAKAMEGA ,(ONYANCHA,LENAOLA, JJ) DATED 29TH NOVEMBER, 2010

IN

KAKAMEGA HCCRA NO. 5 OF 2007)

***********************************

JUDGEMENT OF THE COURT

The appellants Ernest Shiemi (hereafter the “first appellant”) and Calisters Anzetse (also called “Calysters” and “Calisters” in the proceedings) (hereafter the “second appellant”) were charged before the Chief Magistrate, Kakamega, in Criminal Case No. 248 of 2005 with various offences to wit robbery with violence contrary to Section 296 (2) of the Penal Code particulars of the first count being that on the night of 12th / 13th December, 2004 at Ivanga village, Shivakala sub-location in Kakamega district in Western province jointly with others not before court while armed with dangerous weapons namely pangas, swords and rungus robbed Joseph Handa of cash Kshs. 80,000/=, one mobile phone make Nokia 3310, one radio cassette make Panasonic and one hammer all valued at Kshs. 98060/= and at or immediately before or immediately after the time of such robbery used actual violence to the said complainant.

There was an alternative charge to that first count against the second appellant of handling stolen goods contrary to Section 322 (2) of the Penal Code particulars being that on the same date at the same place the appellant otherwise than in the course of stealing dishonestly received or retained one mobile phone make Nokia 3310 and one Panasonic radio knowing or having reasons to believe that they were stolen goods.

On the second count the first appellant Ernest Shiemi was charged with robbery with violence contrary to the said section particulars being that on the said day and place while armed as aforesaid he and others before court robbed Fred Handa Mmenywa cash Kshs. 12,000/= and one mobile phone make Nokia 2100 all valued at Kshs. 19,000/= and at or immediately before or immediately after the time of such robbery used actual violence to the said complainant.

The third count faced the first appellant and those charged with him being attempted robbery with violence contrary to Section 297 (2) of the said Code particulars being that on the said date and place armed as aforesaid they attempted to rob Jane Rose Handa of her properties and at or immediately before or immediately after the time of such attempt used personal violence to the said complainant.

The alternative charge to the third count was against the first appellant and it was to the effect that on the same date and place otherwise than in the course of stealing the first appellant dishonestly received or retained one mobile phone make Nokia 2100 knowing or having reasons to believe it to be stolen.

The trial was conducted by the learned Senior Resident Magistrate (E. O. Obaga) who found no evidence against some of the accused persons and acquitted them. In respect of the appellants in a judgement delivered on 24th January, 2007 the trial magistrate convicted the appellants on the first and second counts but acquitted them on the third count and the alternative counts. The appellants were sentenced to suffer death in respect of the first count and the learned magistrate, having so sentenced the appellants, left sentence on the second count to lie in abeyance.

The appellants were aggrieved by those findings and filed an appeal at the High Court of Kenya, Kakamega, Criminal Appeal Numbers 4 and 5 of 2007. At the hearing of those appeals they were consolidated and heard as High Court Criminal Appeal No. 5 of 2007. The appeal was heard by David Onyancha and Isaac Lenaola, JJ, who in a judgement delivered on 29th November, 2010 found no merit in the appeal consolidated and dismissed it.

The appellants have filed this appeal.

Being a second appeal and by virtue of the provisions of Section 361 (1) (a) of the Criminal Procedure Code only issues of law come for our consideration but not matters of fact which have been tried by the two courts below. This court differently constituted in John Gitonga alias Kados v Republic Nyeri Criminal Appeal No. 149 of 2006(ur)held that :

“... This being a second appeal, we are reminded of our primary role as a second appellate court namely to steer clear of all issues of facts and only concern ourselves with issues of law....”

See also M'Riungu v Republic [1983] KLR 455

What, then, are the issues of law raised in the appeal before us?

There are two (2) Memoranda of Appeal filed separately by the appellants.

The first appellant took three grounds of appeal in the Memorandum of Appeal drawn by M/S Otieno, Ragot & Company Advocates. The grounds are:-

“1. The learned judges erred in fact and in law when they failed to find that the Appellant's Constitutional right as guaranteed at section 72 (3) of the Old Constitution was infringed.

The learned judges erred in fact and in law when they failed to re-evaluate the evidence on record.

The learned judges erred in law and in fact in failing to reconsider and/or discharge the Appellant's defence of alibi.”

The second appellant took seven (7) grounds of appeal in the Memorandum of Appeal drawn by M/S Onsongo & Company Advocates as follows:

“1. The superior court erred both in law and fact in failing to discharge its duty as the first appellant court by failing to thoroughly and independently evaluate the evidence on record so as to arrive at its own conclusion.

The evidence on identification was insufficient to the extent that it did not measure to the required standards i.e. “of being air tight.”

The superior court erred both in law and fact in failing to assess and or evaluate the statement of the Appellant in his defence wherein he raised an alibi.

The trial court relied on inadmissible evidence as relates to the provisions of the now repealed Section 30 of the Evidence Act (Cap 80) (See The Criminal Law (Amendment) Act, No. 5 of 2003.

The trial court as well as the superior court erred both in law and fact in shifting the burden of proof both in relation to guilt and the statutory defence of alibi raised.

Both the courts below erred both in law and fact in failing to adhere to the mandatory provisions of Section 169 (1) of the Criminal Procedure Code in writing their judgments.

The Appellant's Constitutional rights as regards the right to be arraigned in court as soon as possible was breached.”

The case for the prosecution which found favour with the two courts below was that Joseph Handa (PW1), a businessman who operated a matatu, ran a butchery and owned rental houses was asleep in his house with his wife Janerose Handa (PW2) on the night of 12th and 13th December, 2004 when at 1:00 a.m or thereabouts they were woken up by the barking of their dogs which were in the compound. Both PW1 and PW2 peeped through the pane glass window of their bedroom and observed several people in the compound. These people were armed with metal bars, axes, pangas, rungus and stones. There were security lights illuminating the compound. In the compound was also the house of PW1 and PW2s' son Fred Handa (PW3) and the invaders had surrounded all the houses. Suddenly the back door of PW1s' house was broken and invaders entered the house and also the bedroom where PW1 and PW2 were. PW2 screamed for help but was stopped short by a vicious attack by one of the invaders who cut her right ear and head. PW1 identified the person who attacked his wife as Ernest Shiemi who he said he knew before. Ernest Shiemi took PW1s' mobile phone Nokia 3310 which was on the table in the bedroom. One of the attackers Calstus Anzenza who was also allegedly known to PW1 took away a Panasonic radio which was also on the table.

During all this time the attackers were demanding for money while threatening death if their demands were not met. So PW1 opened a box in the bedroom and the attacker Ernest grabbed the Kshs. 80,000/= which had been kept there by PW1 and handed it to the attacker Calistus. The thugs demanded more. They ransacked the house and carted away 500 gram packets of tea leaves, a hammer and two chicken and then moved to PW3s' house where they broke the door and tied up PW3 after robbing him of cash Kshs. 12,000/= and a Nokia 2100 phone. They beat and injured PW3.

When the attackers left the compound PW1 called for help and neighbours responded accordingly. PW1 informed them that he had recognized some of the attackers. The neighbours visited the house of a named attacker Livingstone Angote that very night but did not find him. Angote was still at large by the time the trial proceeded in the magistrates court.

PW1 drove to Isulu Police Patrol Base where he reported the incident. He gave names of attackers to police. PW1 was instructed by police to take the injured to hospital which he did. The injured were admitted to Mukumu Hospital. PW1 found other people at that hospital who had been injured in the spate of robberies that had taken place in the area that night. The following day PW1 met the District Criminal Investigations Officer, Kakamega, who was in a police motor vehicle where PW1 saw one of his attackers (first appellant) under arrest. The DCIO showed PW1 a mobile phone which PW1 recognized as that of his son and was told that it had been recovered from the first appellant. Later that day the same police officer showed PW1 another mobile phone Nokia 3310 and Panasonic radio which PW1 recognized as his items stolen during the incident.

The DCIO informed PW1 that the items were recovered from the second appellant.

Readon Lidogo Ishenyi (PW4), a Clinical Officer at Kakamega Provincial General Hospital examined PW2 and PW3 on 14th December, 2004. He produced as exhibit in court respective P3 Forms which showed that the two (2) witnesses were injured in an attack. The injuries were one day old.

Magdaline Khadambi (PW5), a business-woman who traded in maize at Mulundi market received information on the morning of 13th December, 2004 that the complainants had been attacked the night before. She visited the complainants at Mukumu Hospital and then boarded a matatu. There was a passenger sitting next to her in the matatu. The passengers phone rang. PW5 looked at the said phone and was surprised to see the name of PW3 on the screen. She informed the crew of the matatu of the discovery and presently PW5 spotted a police motor vehicle. She instructed the crew to stop the matatu, she informed police of her discovery and the passenger was arrested. The party left for Mukumu hospital where PW3 operated the said phone and confirmed that it was his phone which had been stolen in the robbery.

Number 55238 PC Albert (PW6) was on 13th December, 2004 at the crime office of Kakamega Police Station when he received a report of violent robberies in the Isulu area. He left for that area accompanied by a colleague. They confirmed the robbery report from the complainants. They arrested suspects in the area and also took the injured to hospital. While at Mukumu hospital gate PW5 who was in a matatu shouted “thief! thief!.” prompting PW6 to go to the matatu where he arrested the first appellant who had a Nokia 2100 in his hands.

A body search of the first appellant also produced a Sagem phone. When PW6 interrogated the first appellant immediately upon arrest the first appellant offered that he had been given the phone by his in law to charge the same. They then proceeded to the house of the second appellant who was also arrested and various items were recovered from his house.

The trial Magistrate evaluated this evidence and found it sufficient to call the two (2) appellants to answer. Upon being put on their defence the first appellant who gave sworn testimony stated that on 13th December, 2004 while on a mission to buy spray for his vegetables and upon reaching Mutao Primary School he met his brother in law called James Shimona who had a mobile phone. The said James told first appellant that he had been unable to charge the phone at Musoli. The first appellant took possession of the Nokia 2100 phone and went with it to Musoli where he boarded a matatu headed for Kakamega. They stopped at Mukumu hospital where a lady passenger alighted and presently came back accompanied by police officers. The police enquired of him where he had gotten the phone from and he readily repeated to the police the testimony narrated above. The police required him to take them to the home of his brother in law James Shimona and he readily did so. Upon arrival at that home James conversed with police briefly then fled from the scene. Presently the second appellant, a neighbour of the said James, emerged and introduced himself as James brother. He was asked and readily agreed to supervise a search of James house. Items were recovered from that house. The appellants were then arrested but James was not arrested at all. The first appellant denied being involved in the robberies and wondered why PW5, who was present, did not give evidence on the aspect where the first appellant freely led police to the said James house.

In cross examination the first appellant stated that:

“... James Shimona is my in-law. James gave me Nokia 2100 to go and charge for him. James told me the phone belonged to him. James did not tell me where he obtained the phone from...

I led police officers to James house.....

It is James who will tell who the owner of the phone could be.... the money found on me was mine...”

The second appellant who elected to give unsworn evidence testified that on the material day he was at home attending to his daily chores when his sister in law, wife to James Shimona, visited on a mission to borrow an axe. The second appellant enquired of her where James Shimona was and was told that James had gone away to charge a phone. Later that day the second appellant saw a police vehicle pull up at his brothers' (James) house and the second appellant observed a conversation take place between his brother and the police. His brother then ran away and the police who pursued him did not catch up with him. This aroused the curiosity of the second appellant who decided to find out what was happening. He found his brothers house surrounded by police officers who asked him to supervise a search of the same. The search yielded various items. The police asked the second appellant to accompany them to the police station to record a statement on the events that had taken place but upon arrival at the station he was thrown into the cells where he remained for over one month before being charged in court.

The appeal came for hearing before us on 29th October, 2013 when learned counsel Mrs. M. Onyango appeared for the first appellant while learned counsel Mr. Richard Onsongo appeared for the second appellant. Mr. C. A. Abele, the learned Assistant Director Public Prosecutions appeared for the Republic.

For the first appellant learned counsel submitted that the learned judges on the first appeal erred when they failed to find or hold that the appellants constitutional rights had been breached. Reliance was placed on Section 72 of the retired Constitution to support this position. Counsel submitted that the first appellant was arrested on 13th December, 2004 and was not arraigned in court until 28th January, 2005, a period of over one month. The relevant Constitutional provision required an accused person charged with an offence like in the case leading to this appeal to be produced before court within fourteen (14) days of arrest. Counsel conceded, however, that this apparent breach of constitutional right which should be raised at the earliest opportunity had not been raised at the trial court or the first appellate court

In support of the ground of appeal that the learned judges on first appeal did not re-evaluate the evidence on record as they were legally required to do learned counsel submitted that although PW2 and PW3 testified that they identified their attackers the same witnesses informed the medical authorities who prepared and completed P3 Forms that they were attacked by persons unknown to them. This, submitted counsel, was a material contradiction which the learned judges on first appeal failed to consider or re-evaluate as required.

On the same issue counsel submitted that the evidence on how a Nokia phone was recovered was contradictory because according to police the same was shown to complainant by the police while the first appellant stated that he had been given the phone by a named person who ran away. This evidence, counsel submitted, was not properly investigated and should have been resolved by the High Court in favour of the appellant.

Counsel submitted finally that it was wrong for the police not to investigate the defence of alibi preferred by the first appellant and that neither of the two courts below addressed this issue.

Learned counsel for the second appellant associated with the submissions of counsel for the first appellant. On alleged breach of constitutional rights counsel submitted that such a breach is an issue of law which according to counsel can be raised at any time or stage regardless of whether it had been raised before.

In respect of re-evaluation of evidence counsel for the second appellant submitted that the learned judges had failed in this respect because according to counsel, the judges failed to appreciate the alleged contradiction on whether the second appellant had been recognized or not, whether neighbours had gone to his house and whether police had visited the appellants house.

Like counsel for the first appellant counsel for the second appellant submitted that the fact that the P3 Forms produced as evidence indicated that the complainants were attacked by unknown people when the evidence in court was that the complainants were attacked by people known to them was a material contradiction which the High Court on re-evaluation of the evidence should have resolved in favour of the second appellant.

Counsel for the second appellant submitted further that the lighting was not sufficient for identification and that the police should in any event have carried out further investigations to confirm whether there was electric lighting as per the testimony of the complainants.

On the second appellants defence of alibi counsel submitted that it was wrong for the trial court and the first appellate court to ignore the testimony of the second appellant that he was given the recovered phone by his brother James Shimona.

On his part Mr. Abele while conceding the apparent breach of constitutional rights in that the appellants were not taken to court within the time stipulated in law submitted that in cases of such nature complaints should be raised at the trial court to enable that court to carry out an inquiry as to why an accused has not been taken to court on time that would lead to delay being justified or otherwise. Circumstances that may justify or not justify failure to produce a person under arrest to court within the stipulated period are matters of fact which the police could explain through sufficient evidence or otherwise, a facility not available when matter is raised late, submitted Mr. Abele.

On why the complainants would state to the medical authorities that they were attacked by unknown persons while stating otherwise in court counsel for the Republic urged us to ignore the information on the P3 Form in that respect because, according to counsel, statements to medical authorities were not made on oath.

On alibi defence counsel submitted that this was displaced by prosecution evidence which according to counsel, was very strong particularly on the aspect of identification because the complainants testified that they were attacked by persons known to them.

That was as far as counsel for the Republic supported conviction of the appellants by the trial court and the re-evaluation of the evidence on the first appeal.

On recovery of items Mr. Abele wondered how this was dealt with by the High Court. For instance the Nokia 2100 phone recovered by police and produced in evidence was not claimed by either of the complainants. The first appellant testified that he received the same phone from his brother in law who was still at large at the time of trial. The investigations officer did not explain whether the said brother in law was a real or imagined person. Other issues that did not sit comfortably with the learned Assistant Director of Pubic Prosecutions were issues such as the conviction of the second appellant in respect of count 2 of the charge where he was not charged at all.

We have carefully considered the whole matter, the submissions and the law.

In the course of the judgement the learned trial magistrate while addressing the defence position that the phone recovered and produced as exhibit had been given to the first appellant by his brother -in law James Shimona and the second appellants defence that items were recovered from his relatives house expressed himself thus:

“The Nokia 2100 was recovered from the 3rd accused on 13. 12. 004. The phone was positively identified by PW3. The 3rd accused does not deny that the Nokia 2100 produced in court as exhibit 1 was found on him. His only reason for having it was that he had been given the same by his in-law one James Shimona. I have considered his explanation and find that the same is not true. In his defence the 3rd accused claimed that he had been given the phone to go and charge by his in-law James Shimona. This is because PW5 Magadaline Khadambi is the one who saw the name of Fred Handa on the screen when the phone rang. It cannot therefore be true that the phone had no charge and yet ring. There was no evidence that there was some power left on the phone when the 3rd accused was allegedly given the phone by his in-law. PW5 had heard that PW1 and his son had been attacked and robbed the previous night. This is the witness who alerted the police. When he saw the name of PW3 on the screen of the phone. The 3rd accused admitted in his defence that there was a lady who was seated with him in the matatu which was coming from Musoli towards Kakamega. PW5 knew Joseph Handa and his family that is why she was able to notice the name on the screen of the phone. A Nokia 3310 and a Panasonic radio was recovered from the house of 4th accused Calist Anzanza. The Nokia which was produced as exhibit 2 and the panasonic radio produced as exhibit 3 were the ones which were stolen from PW1 during the robbery. The panasonic radio was positively identified by PW1 as he had marked it with initials H. M. which stood for Handa Mmenywa. The 4th accused denied that the two items were found on him. He claimed that the items were retrieved from the house of his half brother James Shimona who fled when police arrived in a bid to arrest him. I find his defence to be a total lie. He claimed that as he was outside his house, he saw police officers converse with his said half brother James Shimona before he saw him dash away. This cannot be true as police will have even opened fire at the fleeing suspect. Evidence on record and which I found credible is that it is the 3rd accused who let police officers to the home of the 4th accused. The 4th accused tried to run away but he was arrested after a short chase. The 4th accused still was listening to the stolen radio belonging to his brother James Shimona is therefore not true. I found the evidence of the arresting officer PW6 PC Albert Bungoma to be truthful. He is the one who testified on how he arrested the two accused herein.......”

The learned magistrate also says:-

“Even if one may say that there may have been a case of mistaken identity or recognition, the two accused persons were found in possession of items which were stolen during a robbery which occurred hours before they were arrested. As I have already dismissed their respective defences, I find that the doctrine of recent possession is applicable herein in case the finding of recognition is found to have not been without error....”

As already observed in this judgement the trial magistrate proceeded to convict the appellants on the first and second count. The two appellants were sentenced to suffer death in respect of the conviction on the first count while sentence on the second count was left in abeyance. We observe here that the second appellant was not charged with any offence in respect of the second count and the conviction in respect of that count was illegal.

Both appellants filed similar Petitions of Appeal to the High Court taking issues not dissimilar to the grounds of appeal taken before us. One similar ground that was taken was that at the first appeal:

“THAT my defence was rejected with no congent (sic) reasons given.”

That, to our mind, was sufficient warning to the learned judges to go through the record carefully and re-evaluate the evidence to reach their own conclusion whether the prosecution case was watertight enough to establish the case against the appellants beyond reasonable doubt. It was a beaming warning light that there probably were loopholes in the record that required proper resolution.

The learned judges appear to have been duly warned because they identified in their judgement two issues calling for their attention. They identified them as:

“i) identification and/or recognition

doctrine of recent possession.”

The learned judges proceeded to address these issues as follows:-

“on recognition, it was held in Anjononi vs R [1980] KLR 59 that recognition is good evidence and is more reassuring than identification. In this case, PW1, PW2 and PW3 were all known to the Appellants and were able to recognize them because each of them switched on their electric lights and the robbers made no attempt at hiding their faces. The conditions for recognition were therefore favourable and it is even instructive that all the witnesses were able to name three robbers including one Livingstone Moody Angote who was never apprehended. We find no reason to fault that evidence.

On the doctrine of recent possession, it has been time and time again that for the doctrine to be applied, it must be shown that:

(i) the stolen item belongs to the complainant.

that the accused person was found in possession soon after the theft

the accused person has not claimed that the item belongs to him and has not explained, sufficiently and reasonably, how he came to be in its possession.

(See section 119 of the Evidence Act, Cap 80, Laws of Kenya, Jethwa vs R [1969] E. A 459 and David Kanyoro vs R Criminal appeal No. 265/2006)

(iv) In this case, as fate would have it, PW5 was riding in the same matatu as the 1st Appellant and he had a Nokia 2100 which was identified as belonging to PW3 and which had been stolen the previous night during the violent robbery. The 1st Appellant never claimed the phone to belong to him but said that it was given to him by James Shimenga, his in-law, to go and charge. Like the trial magistrate, that defence cannot dislodge the strong evidence of identification at the scene and possession of the stolen item. We will dismiss the defence as such.

(v) The 2nd Appellant on his part was arrested as he listened to the radio outside his house. He tried to escape but was capture. Stolen items were recovered and identified as belonging to the victims of the robbery. He had no credible answer to that fact and the attempt by both Appellants to shift blame to one James Shimenga is a weak attempt at warding off the inevitable......”

It is true, as observed by the learned judges, that recognition will always be better than identification because in the former the identifying witness is saying that he knew the suspect involved in the matter before court making identification irrelevant.

The evidence of PW1, PW2 and PW3 will show that they were attacked by a large group of people who invaded their home and surrounded the compound. Some entered the houses by breaking doors while others maintained sentry duty around the compound. It is said that there was electric light and thus circumstances for identification were good.

And yet there is the disturbing fact as raised in both appellants defences that they were arrested because the real attackers had escaped and not been found. The first appellant, upon being arrested in the matatu by PW6 stated immediately that the phone he had in his hand was given to him by his brother – who he freely named as James Shimona to go and charge. He offered to and did take the police to his said brothers' house and there is evidence that the brother ran away after a brief conversation with the police. Could it be said, as the learned magistrate did, and as confirmed by the learned judges, that this was not true because the police would have shot James Shimona if he tried to escape?. In the case of Joel Saiyanga ole Mwaniki & Anor v Republic [2007] e KLR 1 this court while considering an issue of visual identification summarized the position in the following terms:

“ Secondly, the extra care required when considering evidence on visual identification is not confined to evidence of a single witness in difficult circumstances but the care is required in respect of visual identification in all circumstances. In the case of Roria vs R, (1967) EA 583 at page 584, Sir Clement De LestangV.P had this to say:

A conviction resting entirely on identity invariably causes a degree of uneasiness, and as Lord Gardner, L.C. Said recently in the House of Lords in the course of a debate S.4 of the Criminal Appeal Act 1966 of the United Kingdom which is designed to widen the power of the Court to interfere with verdicts:

There may be a case in which identity is in question and if any innocent people are convicted today I should think that in nine cases out of ten if there are as many as ten it is in a question of identity.

And in Kenya, the sentiments of Lord Gardner were in the comments made by the predecessor to this Court in the case of Kamau vs. Republic(1975) EA 139 where it was stated:

The most honest of witnesses can be mistaken when it comes to identification.

As a result of the concerns shown by the courts as indicated above on the need to ensure that no person is convicted of an offence on the basis of the untested evidence of visual identification by a witness, this Court has set out certain guidelines that would help the trial courts and the first appellate courts to ensure that a person is convicted only when it is beyond per adventure that he was properly identified. In the case of Cleophas Otieno Wamunga vs. Republic (1989) KLR 422, this Court set out the guidelines as follows: Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach the evidence of visual identification was succinctly stated by Widgery, C. J. in the well known case of R. vs. Turnbull (1976) 3ALL ER 549 at page 552 where he said:

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made....”

PW6, who was the arresting officer but not the investigations officer did not offer any explanation why the allegation by the appellants as regards their relative James Shimona was not investigated at all.

Upon the first appellant being found by PW5 with a Nokia phone leading to his arrest the first appellant neither attempted to disclaim possession of the same nor did he try to escape. He instead voluntarily offered an explanation on how possession of the phone had come to him and freely offered to take the police to the house of James Shimona. Was this the conduct of a thief who had participated in violent robberies the night before?

There is the nagging fear in the circumstances of the case before the learned magistrate that in the face of the defence, taken at a very early stage by both appellants on how the phone came to be in possession of the first appellant and which the police did not bother to investigate the police only charged the appellants with the offences after failing or neglecting to carry out any or any proper investigations. Thus the possible explanation for the fact that the appellants were arrested on 13th December, 2004 and were not presented before court until 28th January, 2005 a period of over one and a half months. What were the police waiting for all that time without complying with clear legal provisions that they were duty bound to present the appellants who were charged with capital offences within fourteen (14) days of the date of arrest? Were they waiting to arrest the said James Shimona and charged the appellants only after failure to either carry out any or any proper investigations and arrest the said persons?

These are not idle but very disturbing questions. They escaped the attention of the learned trial magistrate and were unfortunately not addressed by the learned judges on first appeal. This would therefore mean that the learned judges failed in their duty to re-evaluate the evidence and come to their own conclusions on the matter as is required of them.

Learned counsel for the appellants submitted that the appellants were entitled to an acquittal because their constitutional rights had been violated. The position in law is that an allegation on breach of constitutional rights must be raised at the earliest opportunity to afford the trial court opportunity to interrogate the issue and take evidence, if any, on whether there is delay in presenting the suspect to court within the time required in law.

Section 72 (3) of the retired constitution provided that:

“ A person who is arrested or detained-

(a) ….............

(b) Upon reasonable suspicion of him having committed, or being about to commit a criminal offence and who is not released, shall be brought before a court as soon as reasonably practicable and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.”

This court differently constituted in the case of Dominic Mutie Mwalimu v RepublicCriminal Appeal No. 217 of 2005 (ur) considered the same issue raised before us and addressed itself thus:-

“ A plain reading of that provision of the Constitution as a whole shows that the provision requires that a person arrested upon reasonable suspicion of having committed or about to commit a criminal offence, among other things, has to be brought before the court as soon as is reasonably practicable (emphasis ours).

The section further provides that where such a person is not taken to court within either the twenty-four hours for non -capital offence or fourteen days for capital offence as stipulated by law, then the burden of proving that such a person has been brought to court as soon as is reasonably practicable rests on the person who alleges that the Constitution has been complied with. Thus, where an accused person charged with a non-capital offence brought before the court after twenty-four hours or after fourteen days where he is charged with a capital offence complains that the provisions of the Constitution has not been complied with, the prosecution can still prove that he was brought to court as soon as is reasonably practicable notwithstanding, that he was not brought to court within the time stipulated by the Constitution. In our view, the mere fact that an accused person is brought to court either after the twenty-four hours or the fourteen days, as the case may be, stipulated in the Constitution does not ipso facto prove a breach of the Constitution. The wording of Section 72 (3) above is in our view clear that each case has to be considered on the basis of its peculiar facts and circumstances. In deciding whether there has been a breach of the above provision the Court must act on evidence. Additionally, a careful reading of section 84 (1) of the Constitution clearly suggest that there has to be an allegation of breach before the Court can be called upon to make a determination of the issue which allegation has to be raised within the earliest opportunity.”

We fully associate ourselves with the proposition made in that case.

The record shows that the appellants were represented by counsel at the trial court. The issue of a breach of constitutional rights was not raised at all. Facilities for an interrogation of the issue have been lost as it is not possible for this court to ask for an explanation from the police.

The appellants in any event may pursue the remedy of damages at a different forum.

We think we have said enough to show that the trial magistrate misdirected himself on fundamental issues such as ignoring very credible defences launched by the appellants. The learned magistrate did not consider the disturbing questions we have identified in this judgement. As we have also observed the learned magistrate proceeded to convict the second appellant on a charge which he did not face which was patently illegal. The learned judges did not, with respect, address theses issues and re-evaluate the same which they were required to do on first appeal.

The appeal by the appellants raises credible issues and we agree with the learned Assistant Director of Public Prosecutions that it would be unsafe to uphold the convictions. The upshot is that this appeal succeeds.

The convictions are hereby quashed sentences of death set aside and the appellants will be set free forthwith unless otherwise lawfully held.

Dated and Delivered at Kisumu this 20th day of December, 2013

J. W. ONYANGO OTIENO

…................................

JUDGE OF APPEAL

F. AZANGALALA

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR