[2023] KEHC 25005 (KLR)

Etyang v Republic (Criminal Appeal 094 of 2022) [2023] KEHC 25005 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25005 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 094 of 2022

SM Mohochi, J

November 9, 2023

Between

Silas Opollo Etyang

Appellant

and

Republic

Respondent

(Appeal against the Conviction and Sentence in CMCC SO No. NO 281 of 2019- Eldoret, Republic v Silas Opollo Etyang, delivered by Hon C. Menya SRM. delivered on 02. 09. 2022)

Judgment

Introduction 1. Mr Silas Opollo Etyang appeals against Conviction and Sentence to life Imprisonment for the offence of robbery with violence contrary to `sections 296(2) of the Penal Code based on the following grounds;i.He is a first offender and thus beg for leniency;ii.He is remorseful, repentant and reformed as he has learnt to take responsibility of his own actions and a teacher/mentor to others of similar behavior;iii.He is a young man and prays to be re-integrated back in the society to serve as a role model and a teacher/mentor to others of similar behavior;iv.He has served a substantial part of my sentence and prays that the court invokes section 333(2) and section 362,364 (1)b &365 of the CPC Cap 75 laws of Kenya among other enabling laws in finding favor with his appeal;v.That may this honorable court be pleased to consider the sentencing policy of 2016 published by the Kenya judiciary and establish the mitigating circumstances that would lessen the custodial sentence; andvi.More grounds to be adduced at hearing there-of and determination of this appeal.

2. The Appellant further Amended his petition of Appeal on the 24th January 2023 while filing his written submissions, his amended petition was duly admitted and the same included:a.That the learned trial magistrate erred in law and facts by convicting the appellant without observing that, there was no positive identification according to the evidence of PW1 at the hospital.b.That the learned trial magistrate erred in law and facts by not observing that, there was no distinguishing mark to prove that indeed the cap belonged to the appellant.c.That the offence of robbery with violence contrary to section 296 (2) of the Penal Code was not proved since there was no parade identification that was conducted on the appellant.d.4) That the sentence of life imprisonment was declared unconstitutional in Petition No 618 of 2010 – Joseph Kaberia and 11 others.

Appellant’s Case 3. The Appellant Collapsed his grounds 1-3 in submissions while submitting that the life imprisonment sentence in this instance was unconstitutional.

4. The Appellant submits that, the offence of robbery with violence under the provisions of section 296(2) of the Penal Code must be proved on the following ingredients (1) positive identification (2) if during the offence violence was commissioned on the complainant and (3) if the complainant was robbed during the incident, that in the instant case the parade of identification was not conducted considering that the offence was committed at night. The court is referred to page 24, 1st paragraph of the proceedings where PW3 on record told the trial court that he did not conduct the identification parade because the appellant was known to the villagers.

5. The Appellant submits that, there was also an issue of recognition that the trial court failed to make analysis. That if the circumstances supported the recognition to the required standard, the prosecution failed to produce the complainant’s first report, because the same could have confirmed if indeed the complainant recognized the appellant in order to waive and/or clear any doubt.

6. The Appellant submits that, there was no proof that the appellant was at the scene of crime hence the complainant recognized him. In that regard he refers the court to page 42 line 4 of the proceedings during the violence of PW6 (doctor) who was the first person to meet after the incident. He met with her before even the police booked the report (first report), the Appellant quotes (PW6): - “She complained of assault by people she did not know.“ It is the Appellant’s, contention that PW1 did not know the people who assaulted her, hence identification parade was needed. Reliance is placed on the case of Wamunga v Rep.

7. The Appellant submits that, the medical documents (P3 Form) did not support his recognition in this matter. That it is a trite law, to believe that the complainant recognized the assailant as the appellant while she gave an information of being assaulted by people that she did not know and on that regard the Appellant urges the court, to find that the court was in err.

8. The Appellant submits that, that PW1 told the trial court that, she used the torch which assisted her to know and recognize the appellant, but the Appellant contends that question on that issue is that, between two people whereby the first person has a torch and the second doesn’t have, hence it is in great darkness at 1. 00a.m. hours then the one with a torch lights towards the one who don’t have the torch, now between the two who will see the other person properly? Definitely it is the one with a torch that will see the second person properly. On that regard the Appellant urges the court to find that, despite the complainant being assaulted, it is a fact that she did not at any stage identify the robbers.

9. That from the record it is evident that the appellant was arrested because of cap which was recovered at the scene of crime but it was not because of any recognition or identification by the complainant. From the trial record there was no other witness who said that he identified the appellant at the scene of crime. The Appellant contends that, the said cap, the one that led to his arrest, did have distinguish mark so as to single it out. The said evidence regarding the cap did not hold water during the determination by trial hence it was dismissed. The Appellant refer the court to page 54 line 15 of the proceedings when the trial court held that “the evidence of the cap in my opinion may not hold water have for the fact that it was in fact that the cap that made the villagers go for the accused would mean that he must have been known in the areas with the said cap.”

10. The Appellant submits that, he was arrested because of the said cap, it is his analogous view, that if one can go out in the street now, one may meet with people wearing caps of the same colours and make/fashion hence the said cap could have not been the reason convicting the appellant, also PW1 told the trial court that she identified the appellant, through a torch which the appellant was using, she further stated that the appellant let the said torch in the chicken; The Appellant refers the court to page 19 lines 4 -5 of the proceedings, that it bears the logic that said torch was not produced as exhibits and on that regard he urges the court to dismiss that evidence.

11. The Appellant submits that, if PW1 recognized the assailant as the appellant then, she could have told the doctor that she knew one of the robbers but instead she said to the doctor that she was assaulted by unknown people as per the evidence of PW6 on the trial record. PW5 told the trial court that it was the villagers who insisted the cap belonged to the appellant, the Appellant refers the court to page 27 line 15 – 16 and quotes (PW5) “there was a cap in the scene about 10m from the door of the complainant, they insisted that it belonged to Sila (accused)” the court is invited to concur that, the appellant was arrested because of the said cap.

12. That PW5 told the trial court that the appellant was not a good person, hence did not proof the same, he did not even make a single reference, of the offence or offences that the appellant had been charged or convicted prior of the instant case and on that regard, he urges the court to dismiss that evidence.

13. That, PW4 on record told the trial court that, the robbers robbed the complainant money contrary to what PW1 told the court that they robbed her a cock, the Appellant refers the court to his defence on page 46 line 3 -4 and quoting (DW1) “what was produced was not mine in fact it was very new” that the appellant had cap, but the one which was brought was his considering the fact in his defence that this one produced in court was very new, that this means that cap of the appellant was very old.

14. The Appellant submits that, the charges against me was unfounded, hence his arrest was based on the cap that did not link him to the offence at all. That there was no identification parade conducted, it is the duty of the prosecution to produce all the evidence required in order to prove their case. And in the instant case, the police could have provided the complainant with the transport means to enable her to reach the police station and attend the identification parade, also the trial court could have not been relied on the evidence produced in court for the offence of robbery with violence that occurred in the night without the evidence of the identification parade. That the same rendered the trial unfair under article 50 (2) of the Constitution of Kenya 2010, and on that regard, he urges the court to invoke the provisions of the Constitution 2010 under article 159, 27 (1), 50 (6) while exercising its mandate of re-visiting the evidence afresh and come up with its own independent conclusion.

15. The Appellant finally submit that the minimum mandatory sentence was declared unconstitutional in the case of Joseph Kaberia and 11 others in Petition No 618 of 2010, hence he prays that justice to all shall be prevailed in this matter.

Respondents Case 16. The Appeal is opposed and the Respondent submits that the prescribed penalty under Section 296(2) of the Penal Code, is death Sentence and that the life imprisonment sentence imposed was lawful and proper and took into consideration the Appellant’s mitigation.

17. The State relies on the case of Bernard Kimani Gacheru v Republic (20021 eKLR where the court observed 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 i, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist,"

18. Further Reliance is placed in the case of Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No 253 of 2003 the Court of Appeal stated that:“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".

19. The State urges the court not to disturb the sentence and to dismiss the Appeal and Uphold the Sentence.

Trial Court Proceedings 20. The prosecution in support if their case called 6 witnesses.

21. Particulars are that the accused on the 10th day of January 2019 at Sichimi village, Maragusi sub location in Lugari Sub County within Kakamega county with others not before the Court, while armed with offensive weapons namely panga, chisel and pliers robbed Norah Liseche okie one Cockerel valued at Ksh. 600/= and immediately before and or immediately after the time of such robbery used actual violence on the said Norah Liseche Okie.

22. PW1 was the complainant herein, she told the court that she comes from a place known as scheme and that she does not work. It was her further testimony that on 10th January 2019 she was at home sleeping at around 1. 00 a.m. when she woke up to go outside for a short call. She met some people on the door who opened the house and that the said people had a torch.

23. That they forced her back to the house and demanded for money. That she was also cut with a panga on the left side of the head. That she had no money after which she was assaulted and when she blocked, she got a fracture on the elbow. She said that the assailant was not known to her.

24. That at the time she was so broke and had no money to give them. She pointed at the accused as the person who she had seen.

25. That she was forced to sit on the floor and while sitting, she could see the face of the accused through the torch. She said that the accused is known to her since his farm boarders hers and that he took a cock and ran away.

26. That she raised an alarm after which a group emerged and the accused dashed into a sugar cane plantation. She said that the accused had a blue cap which must have fallen while he was running away and that the cap was identified by people who know him.

27. She went on to add that she was taken to hospital by her grandson in the company of a cyclist and that she was transferred to Turbo who also referred her to Lumakanda hospital. She identified the Treatment notes from Turbo were marked as MFI1 and the P3 form as MFI 2.

28. She said that she had a sling and kept going for review. She said that they reported the matter at Pan paper after which police from Turbo were called. She said that she was very sick and that she recorded a statement. That there was no identification parade and that her children dealt with the police.

29. She said in cross examination that, the cap was recovered in the morning and that she had lost consciousness. She denied having disagreed with the accused and reiterated the fact that she saw him through the torch. She said that he lit the torch on the chicken and even forced her to sit and that the chicken were close. She insisted that she could see him. She admitted that there was no identification parade.

30. PW2 was Denis Simatwa from Lugari area and a farmer. He said that the complainant is his grandmother. It was his further testimony that on 10th January 2019 at around midnight he was sleeping about 100 m away from his grandmother's house when he heard her scream from her house. That he went to the scene though he had no weapon and upon arrival, he found 2 people outside his grandmother's house and that others were inside.

31. That he also screamt and that it took long for the neighbors to arrive. That the person inside had a torch and that he could not enter and the others who were outside ran away when the neighbors arrived. That he took the complainant to hospital since she was bleeding on the elbow at the time.

32. He said that they suspected the accused since his cap was found at the scene at the door of the complainant and that the people went to his house and did not find him and that his door was in fact locked time.

33. He admitted not having seen the accused and admitted that he did not enter the house, and that he however recovered the cap which he insisted he always saw the accused with.

34. That when later asked about the cap he admitted that he knew it.The cap was marked as MFI 3. That the moment the Appellant admitted that the cap was his, the crowd attacked him after which he was taken to the police at Turbo police station.

35. That he recorded his statement and that at the time the complainant could not go to the police station which he explained to the police. He said that identification parade was not conducted.

36. In cross exam he insisted that the cap belonged to the accused and that he had previously seen the accused wearing the cap. He reiterated in exam that he saw him with the cap.

37. PW3 was Kevin Mukanza from pan paper area. He said that at the time he had just completed his Form 4 and that he did not work. In relation to the charges he said that on10th January 2019 at around 1. 00 am he was asleep when he heard noise and chicken were chucking.

38. He followed the noise, opened the door and a torch was lit on his face and that he saw 3 people and ran away to his door. That he raised an alarm and 2 of them followed him, that he just saw many torches and that he ran away and that the attackers entered the Sugar cane.

39. He said that a cap was recovered from his grandmother's house which belonged to the accused. It was his testimony that the said cap was black in color.

40. That they went to the house of the accused and he was not there after which they took the complainant to hospital since her elbow had a cut.

41. Her said that the matter was reported to the police after which the accused was later arrested and charges and that the accused admitted that the said cap was his. He said that identification parade was not done, that he lives about 100m away from the complaint and that a bottle was thrown at him.

42. In cross examination he admitted that he did not see the accused.

43. PW4 was No 235353 Inspector Lawrence Njeru the Officer in charge Turbo police station. lt was his testimony that on 10th January 2019 he got a call from panpaper AP post that the complainant was attacked and that he went to the scene.

44. That he carried out investigation and arrested the accused having been identified by the complainant. That the complainant's money was taken and that the accused happened to live behind the complainant's house and that the accused vacated his house at night. He said that a blue cap was recovered which had a white writing and the said cap was availed ae exhibit 3.

45. He said that he did not carry out an identification parade since the accused had already been identified with the recovery of the cap and that the neighbors also knew the accused.

46. In cross exam he said that they did not conduct an identification parade and that in fact the accused knew that the complainant had sold land.

47. PW5 was Ruben Barmao a village elder from Lugari area. He told the court that on 10th January 2019 he got a call from one Denis at around 6. 00 a.m. that his grandmother was attacked and that the robbers had broken her arm.

48. That he went to the complainant’s home and found a group of people and that there was a cap at the scene about 10m from the door and that the people stated that it belonged to the accused and that the said cap was blue in color. He said that the complainant was already back from the hospital at the time.

49. He said that he took the accused to the police station and that he was also attacked in the process since he was also saving the accused and that he recorded a statement. He identified that accused as the person who was in the dock and that he knew the accused who hails from his jurisdiction and that he knew the accused from birth.

50. In cross examination he said that, nothing was recovered from the accused and that the cap was at the complainant's door, that the accused lives about 100m from the complainant, that it was the cap who made him arrest the accused and that he just in fact assisted the accused who in his opinion could have even been killed.

51. He said that the accused is an offender in the area and that there has been no chaos since the accused was taken to remand, that the accused was previously arrested for stealing a cooking pan.

52. In re exam he said that the cap belonged to the accused and that it was outside the complainant's house which was about 100m away and that the cap was recovered in the date of the offence.

53. PW6 was one Janet Koech a clinical officer at Turbo Sub County hospital. She availed the complainant's p3 form who was 76 years old at the time. She said that the complainant visited the facility on 10th January 2019 and that she was the one who treated the complainant.

54. She said that the complainant had a cut on the left upper arm and that an x-ray showed a fracture. She said that she placed the complainant on analgesics and antibiotics and took her for orthopedic review and that the said arm was plastered. That on 15th January 2019 she filled the P3 form that was produced as exhibit 3 and the treatment notes and exhibit 1.

55. In cross examination, she said that the complainant stated that she was attacked by 5 people who she did not know.

56. That marked the close of the prosecution's case and the accused was placed on his defense.

57. He opted for sworn testimony and told the court that he comes from Lugari area. He told the court that on 8th January 2019 he was at scheme area when preparing fencing holes at around 9. 00 am in the morning when 2 people approached him and asked him to join them.

58. That they took him to a certain place where theft had occurred and that he was asked if he knew about it after which he was taken to the police station. He said that he was not aware of the crime and that was the reason why he was in court.

59. In cross examination he said that, he denied ownership of the cap and that what was availed in court was not his and that the said cap was in fact very new. He denied knowing the complainant and that he did not know why he was arrested. He stated that he got to know the complainant in court. He said that he did not have a witness and admitted that he was sworn so that he could speak the truth and was all he said in defense.

Analysis and Determination 60. The duty of the first appellate court in criminal cases was restated in the case of Charles Mwita v Republic, C. A. Criminal Appeal No 248 of 2003 (Eldoret) (unreported) where the Court of Appeal, at page 5, recalled that;“In Okeno v R [1972] E.A. 32 at page 36 the predecessor of this Court stated: - “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R [1957] EA. 336) and to the appellate court’s own decision on the evidence”.

61. Being a 1st Appeal Court I must, weigh conflicting evidence and draw conclusions, (Shantilal M. Ruwalla v R [1957] EA 570) it is not the function of a 1st Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusion; it must make its own findings and draw its own conclusions Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] EA 424. ”

62. Having evaluated the entire Body of evidence I do find that the evidence by the Prosecution was coherent, watertight and that minor inconsistencies were cured in corroboration the Appellants Conviction was sound and proper in law, his identification was with familiarity as the Appellant was the victims neighbor hence no need of an identification parade.

63. Article 165(6) and (7) bestows supervisory jurisdiction in this court which is enjoined to, promote the purposes, values and principles of the Constitution, and to interpret it in such a way that the interpretation: advances the rule of law, develops the law and contributes to good governance failing which, then the person who caused the arrest and detention has a duty to explain the delay and persuade the court that in any event the person has been brought before court as soon as reasonably practicable. 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 provisions of the Constitution aforesaid have not been violated.

64. Article 49(1), (f)(g) and (h)- provides for the Rights of an arrested person to include the rights to;(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;(g)at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and Constitution of Kenya, 2010(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

65. Article 50 of the Constitution underscores the right to a fair hearing and provides that:(2)Every accused person has the right to a fair trial, which includes the right—(k)to adduce and challenge evidence

66. The court concurs with the view expressed in Jackson Wangui and another v Republic [2014] eKLR where the court observed: -“As submitted by the petitioner, however what amounts to life imprisonment is unclear in our circumstances. It is not, however, for the court to determine what should amount to a life sentence; whether one’s natural life or a term of years. In our view, that is also province of legislature...as to what amount, to life imprisonment, this is a matter for the legislative branch of Government. It is not for our courts to determine for the people what should be a sufficient term of years for a person who committed an offence that society finds reprehensible to serve.”

67. The court recalls the Supreme Court in the MuruatetuCase2 went on to state at Paragraph 95 that: -“We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevance judicial officer along established parameters of criminal responsibilities, retribution, rehabilitation and recidivism.”

68. The Appellant has beseeched this court to review the Sentence of life imprisonment and substitute the same with a determinate imprisonment sentence.

69. This Court has considered the serious charges against the Appellant, the aggravating circumstances of the offence, the advanced age of the victim, and the terror and trauma visited upon by the assailants against a senior citizen leading to the finding that the Trial magistrate exercised her discretion judiciously in sentencing the Accused to life Imprisonment instead of the death sentence.

70. In view of the emerging jurisprudence around the indeterminate nature of life imprisonment, I have considered the aggravating circumstances in which the offence was committed, as well as the period which he spent in custody during the time when he was still on trial; and hereby review the Life Imprisonment Sentence and I now re-sentence the Petitioner to 30 Years Imprisonment, for the offence of Robbery with violence.

71. The Sentence shall run from 10th January 2019 to include the Pre Trial detention period served by the Appellant.

It is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 9TH DAY OF NOVEMBER 2023MOHOCHI S.MJUDGE