[2024] KEHC 3790 (KLR)

Erupe & another v Republic (Criminal Appeal E038 of 2023) [2024] KEHC 3790 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3790 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E038 of 2023

RN Nyakundi, J

April 5, 2024

Between

Collins Erupe

1st Appellant

Loparan Ebei Alias Lokiru

2nd Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. C.M. Wekesa; (PM) in Lodwar law courts Cr. Case No. E166 of 2021)

Judgment

1. The Appellants were charged with robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code. Particulars stated that the Accused persons on 4th March, 2021 at Nabulon area in Turkana County jointly robbed Ngikaskou Abulon Sylivia of her foodstuff and detergents valued at Kshs. 9,470/= and immediately before the time of such robbery beat the said Ngikaskou Abulon Sylvia.

2. The Appellants were convicted of the charges and sentenced to death.Being aggrieved by both the conviction and sentence meted out against them by the trial court, they filed the instant appeal.The appeal was lodged on grounds couched as follows:i.The trial magistrate erred in law and fact by failing to inform the appellant a right of fair hearing pursuant to Article 50(2) (g), (h) and (j) of the constitution.ii.That the trial magistrate erred in law by failing to ensure that the appellant was supplied with the witness statements and prosecution exhibits throughout the trial.iii.That the trial magistrate erred in law by failing to comply with section 200(3) of the CPC.iv.That the trial magistrate erred in law and in fact by failing to observe that no sufficient evidence was adduced by the prosecution to sustain the conviction.

3. The Appellants filed their written submissions which I have considered in making a determination.

1St Appellant’s Submissions 4. It was the appellant’s submission that his rights guaranteed in Article 50(2) (g) of the Constitution of Kenya 2010 were violated by the court as the record does not show that he was informed of his right to choose to be represented by an advocate. Secondly, the trial magistrate failed to observe that the appellant was a layperson and not well conversant with legal matters and ought to have been represented by an advocate. The appellant relied on the case of Joseph Kiema Versus Republic (2019) eKLR.

5. The 1st appellant argued that he was not accorded a fair trial as required by article 50 (2) (g), (h) and (j) of the Constitution of Kenya.

6. The appellant further submitted that he was not supplied with prosecution witness statements and exhibits through out the trial. That according to the record, the appellant was given one witness statement.

7. The appellant submitted that the evidence presented was not sufficient to convict the appellant. He stated that the evidence in such matters should be considered in totality. That all elements of the offence of robbery ought to be established. The 1st appellant stated that the seriousness of the offence and severity of the punishment should have been a reason by the trial court to observe the principles of fair hearing as provided by the law. He prayed that his appeal may be allowed.

2Nd Appellant Submissions. 8. The 2nd appellant submitted that it could have been vital to call other witnesses including the grandmother who saw the items stolen. Further that the prosecution failed to call the witnesses who was arrested. He submitted that he was forced to proceed with the case without court proceedings. That lack of it violated his rights under Article 50 (a) (b) of the Constitution of Kenya.

9. The appellant argued that the trial court should have considered whether the defence mounted by him cast doubt on the prosecution case. He argued that there was a long a long standing between himself and PW2. In summary, he submitted that the prosecution case is clouded with doubt. It was not established beyond reasonable doubt. The appellant urged the court to consider the circumstances of the case and the trial court record in allowing the instant appeal as prayed.

Analysis And Determination 10. 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.

11. 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 it case to the required standard.

12. It is now trite that a prisoner’s guilty facing any criminal offence must be established beyond reasonable doubt. That is what the case of Miller –vs- Minister of Pensions 1947 (2) ALL (ER) provides for in this statement that proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind of the court to a more of certainty that the fact exists that is claimed to exist by the prosecution on the elements of the offence as against the accused person. In essence is not proof on a balance of probabilities. That is the test in which the impugned judgement of the Lower Court must be subjected to.

13. 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.”

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

15. According to PW1, she left home and went to the market to buy meat, she came back and found the window to her house open, the 1st appellant was standing besides the open window, he rushed inside only to find the 2nd appellant carrying wheat flour. She realized that they had carried several things. She confronted the 2nd appellant to know why he was carrying her items. He slapped her so hard on her face that she fell down.

16. Based on the foregoing testimony, it is evident that indeed there was assault in the process of being robbed. The items taken were: chili sauce, ¼ bag of sugar, ½ bag of rice, one bale of Flour, 1 box Spaghetti, 3 litres of oil, Toss packet, salt and tea.

17. PW3, the clinical officer examined PW1 and observed that she had swollen hands and tender forehead and chest, the upper limbs were lacerated and swollen. That he treated her by giving her antibiotics together with pain reliever.On identification of the appellants, PW1 gave a clear account of what transpired on that day; she knew both accused persons well, she explained that the 1st appellant was her relative, 2nd appellant was from the neighborhoods.One such landmark case is that of R –vs- Turnbull & others [1973] 3 ALL ER 549 which decision stated as follows on identification.“… The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be mad. How long did the witness have with the accused under observation? At what distance? In what light? Was the observation impeded in any way …? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? … 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”.

18. I have had the occasion to peruse the record as well as the comprehensive judgment of the trial court and I wholly agree with the findings of the trial court that the elements of robbery with violence and further the Appellants were positively identified as the persons culpable and responsible for the commission of the offence. The defence by the Appellants did not either contradict or rebut the case for the prosecution. There is no evidence therefore to review and substitute the order on conviction with any other alternative order as invited by the Appellants to allow the Appeal. The Appeal on Conviction is dismissed.ON SENTENCE“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.”

19. 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.”

20. In my considered view, the accused mitigation ought to count in sentencing. The objectives of sentencing should be considered in totality.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.

21. The mandatory penalty that has been in existence for the offence of Robbery with violence contrary to Section 296(2) of the Penal Code was by implication struck down by the Supreme Court in the case of Muruatetu vs Republic (2017) eKLR on the basis that no judicial discretion existed for the offence concerned. Although the predominant principles primarily focused on Section 204 of the Penal Code one cannot rule out it is application to other mandatory nature of sentences in our penal system. Precisely it is the arbitrariness of the mandatory sentence that makes it repugnant to the fundamental rights and freedoms enshrined in our constitution. The text of the African Charter places a high premium on the requirement of due process where the right to life is threatened. It reads: “ Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right” In my considered view the stringent of the approach taken by the Supreme Court is to preserve the capital punishment for offenders who commit the most serious crime whose extreme culpability makes them the most deserving of execution. In other words the rare test must be articulated by the sentencing judge or magistrate given the new jurisprudential development in this area. The law is settled as to the jurisdiction of an Appeals Court to interfere with the sentence imposed by the trial court. See Bernard Kimani Gacheru vs Republic (2002) eKLR, Ogolla s/o Owuor v Republic , (1954) EACCA 270, Shadrack Kipkoech Kogo –vs- R. Eldoret Criminal Appeal No. 253 of 2003. The Canadian Supreme Court in R v Smith (1987) 40 DLR SCC formulated a test for proportionality to be a fair measure to determine the length of imprisonment, which reads: “ The court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentence would have been appropriate to punish rehabilitate or deter this particular offender….The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the enquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves.

22. The Penal Code prescribes a death sentence for the offence of robbery with violence. I am alive to the decision in Muruatetu and it has been said time and again that it is the mandatory nature of the death sentence that was declared unconstitutional. Judicial officers have room to exercise discretion in sentencing an accused person to death, depending on the circumstances of the case.

23. In the judgement of the trial court it is implicit that the requirement for sentencing discretion remains underpinned on the law, aggravating and mitigating factors being some of the key issues for consideration. It is accepted from the record that the aggravating factors were that the appellants acted in concert with a common intention to commit the offence of robbery. In applying the salutary principle, the specific circumstances are such that the victim suffered harm on account of that robbery but the goods or property so stolen comprised of food stuffs valued at Kshs 9000. In other words, robberies involve some form of depravity or aggravated assault and that the courts must distinguish between simple robbery from aggravated robbery. There are compelling circumstances in this case to have contributed for the Appellants to be sentenced to a lesser period of custodial sentence. The motive for the robbery was not extremely heinous to call for the death penalty.

24. In considering the above-mentioned factors as underpinned in the Muruatetu case I will interfere with the sentence and substitute it with six (6) years’ imprisonment. Turning to the record, it shows that the Appellants were in custody since the arrest and arraignment in court on 15. 3.2021. The final judgement that the learned trial magistrate was delivered on 27. 7.2022 therefore rendering the application of Section 333(2) of the Criminal Procedure Code on credit sentence for the period spent in remand custody. The sentence so reviewed and substituted on Appeal shall take into account the period the Appellants were in pre-trial detention pending the determination of their case.

25. Therefore, I dismiss the Appeal on conviction but set aside the sentence of death against the Appellants and have it substituted with a sentence of 6 years imprisonment taking into account Section 333(2) of the Criminal Procedure Code.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT LODWAR THIS 5TH DAY OF APRIL, 2024In the Presence ofWasike for the DPPApplicant........................R. NYAKUNDIJUDGE