[2017] KEHC 9726 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 212 of 2011

EVANS OUKO ODUOR............................................APPELLANT

VERSUS

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

(An appeal from the original conviction and sentence in the Chief

Magistrate’scourt at Kibera Cr. Case No. 1993 of 2010 delivered

by Hon. D. O. Onyango, SPM on 19th August 2011).

JUDGMENT

Background.

Evans Ouko Oduor, herein the Appellant, was charged of committing the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 18th April 2010 at Psys Bar and Restaurant in Westlands within Nairobi Area province, the Appellant, jointly with another not before court, robbed Amos Luvasa Khamenzi of cash Kshs. 8,380/- and at or immediately before or immediately after the time of such robbery wounded the said Amos Luvasa Khamenzi.

The Appellant was arraigned in the magistrate’s court and at the conclusion of the trial found guilty, convicted and sentenced to suffer death. Being dissatisfied with that court’s decision he lodged the present appeal. He set out his amended grounds of appeal in an addendum to his written submissions. They were that the learned trial magistrate erred when he failed to consider the fact that the prosecution did not prove the case beyond a reasonable doubt, that the learned trial magistrate failed to consider the fact that crucial and vital witnesses were never called and that the learned trial magistrate failed to consider his defence.

Submissions

The Appellant who was in person relied on written submissions he filed on 26th September, 2017. He submitted that the identification evidence that was relied upon to found a conviction was unreliable given that only the complainant witnessed the incident. He submitted that the complainant failed to indicate in his statement that he had bitten his assailant. Furthermore, no medical examination was conducted on him to establish that indeed the complainant had bitten his finger. He submitted that the bite mark would have constituted crucial evidence of identification. He added that the circumstances of the case were such that the evidence of a single identifying witness could not be relied upon; more specifically that he was not placed at the scene of crime.

He then faulted the failure to call crucial witnesses namely the investigating officer and three persons who allegedly participated in arresting him being, George Ouma, Daniel and Peter Mboya. His view was that the failure to call the witnesses weakened the prosecution case. He relied on Bukenya v. Uganda[1972] EA 549to buttress this submission. He submitted that he was arrested based on mere suspicion, a pointer that no investigations were carried out.

Finally, he submitted that his alibi defence was not considered.

Learned State Counsel, Ms. Nyauncho on the other hand opposed the appeal and submitted that all the elements of the offence were proved beyond a reasonable doubt. She urged the court to dismiss the appeal.

Evidence

PW1, Amos Lusava Khamoneiwas the manager at Psys Bar located at Unga House in Westlands. He recalled that on 18th April, 2010 at around 5. 30 a.m. he was at the bar and proceeded to the basement where he was to pick a colleague’s camera. When he got into the room, but before he could get to the table where the camera was placed, he was suddenly held from behind. His attacker was aiming at his neck but one of his fingers got into the witness’ mouth. He recalled that there was Kshs. 8,350/- on the table.

He testified that suddenly another man appeared who proceeded to take the money which led him to realize that they were under attack. He bit the right hand in his mouth which occasioned an injury to one of the fingers. He started struggling with the man which led to the loss of his two teeth on the lower jaw(he showed the court the gap left after the loss). The second attacker left as he struggled with one he had bitten. The latter attacker then freed himself and tried to escape through the main door which unfortunately was locked up. He tried to use another exit known as A but a sentry officer, a bouncer and one of his colleagues apprehended him. Police from Parklands police station arrived and re-arrested him. He identified the Appellant as the man who was arrested.

PW2, Peter Mbugua Gitau andPW3, Daniel Lunonyi Anatswere a waiter at Psys Bar and a security guard with Dragon Security Agencies at Unga House respectively. They helped in the arrest of the Appellant as he tried to escape from the building. PW2 heard screams while inside the bar and went to check what was going on. He found it was PW1 screaming before noticing two men running towards his direction. One of them bumped into him while the other one got away. The one who bumped into him went into the building outside the bar and he pursued him. He was joined by two security men one of them being PW3 with whom they arrested the Appellant. They locked him up in the restaurant until the police arrived and re-arrested him. He recalled that the Appellant had an injured finger that was bleeding. PW3 was manning the night shift. He entirely corroborated the evidence of PW2 save to add that he was attracted to the incident after hearing PW2 screaming and on rushing to the scene found PW2 and others chasing thieves. He joined in the chase and they managed to arrest the Appellant who was a stranger in the building. He added that he met PW1 bleeding from the mouth and had lost two teeth.

PW4, Dr. Zephania Kamauof police surgery examined PW1 on 26th April, 2010. He confirmed he had two lower incisor teeth missing. He also had bruises on the lower lip. He concluded that the injury was caused by a blunt object and assessed the degree as harm. He filled a P3 form to that effect which he produced in court.

PW5, No. 55823 PC Masoud Rashidthen based at Parklands Police Station re arrested the Appellant on the date of the incident at 6. 00 a.m. This was after receiving a call from Psys Club in Westlands informing him that some robbers had been arrested. He was accompanied to the club by one Omar Iddi. They were informed that a second robber escaped with Kshs. 8,380/-. He escorted the Appellant to the police station where he recorded a statement. He handed the Appellant to CPL Mwenge for further action.

After the close of the prosecution case, the court ruled that a prima faciecase had been established warranting the Appellant to be placed on his defence. The Appellant opted to give an unsworn statement of defence. He stated that he lived at Deep Sea within Westlands and worked at Pino Elephant as a waiter. That on 18th April, 2010 he left work at 5. 00 a.m. and boarded a matatu to Westlands. After alighting as he was walking towards Unga House he was arrested by three men who started assaulting him. The men were joined by some watchmen and he was arrested and escorted to Parklands Police Station where he stayed for four days before being charged.

Determination

It is now the duty of this court to reevaluate the evidence and arrive at its own independent conclusion. See: Okeno v. Republic[1972] EA 32.

After considering the evidence and the respective rival submissions, I have deduced that the issues arising for determination are whether the case was proved beyond a reasonable doubt, whether the prosecution failed to call crucial witnesses and whether the Appellant’s defence was considered. I will first address the latter issue. The Appellant contends that there was a failure to call crucial witnesses in the matter. He singled out the investigating officer whose testimony would have aided to stitch together the evidence adduced by the other witnesses and clearly set out the prosecution’s case. He added that his/her importance is compounded by the fact that he is also tasked with the production of exhibits in certain cases. This submission does indeed hold but not in all cases. Where other witnesses fill the void that would otherwise have been created by the absence of an investigating officer, the failure of the latter to testify does not necessarily weaken the prosecution case or render it irredeemable. Thus,. the circumstances of each case matter in determining the worth of an investigating officer.

In the present case, PW4 was one of the arresting officers. In his testimony he stated that he was told by the witnesses what led to the arrest of the Appellant. He went to the scene for this purpose and had an opportunity of interacting with the witnesses. He also escorted him to record his statement. His evidence set the crux of the entire case. In fact, the investigating officer would just but have duplicated the testimony of PW4. Therefore, in my considered view, the failure to call the investigating officer did not in any way weaken the prosecution case.

The Appellant also cited George Ouma, Daniel and Peter Mboya as crucial witnesses who did not testify. Amongst them Daniel was actually PW2. The other two were involved in his arrest and would therefore not have given fresh evidence. No void was created by their failure to testify.

On proof of the case, this is a case in which the Appellant was arrested almost at the scene as he escaped from an eminent arrest. The witnesses who arrested him never lost sight of him. PW1 screamed to attract attention as a result of which they pounced on the Appellant and his accomplice as they tried to escape. Only the Appellant was arrested. He bumped into PW2 which made him change his intended exit point. He tried to use an alternative route, Exit A, but at this point he was already cornered by his pursuers who proceeded to arrest him. Thus, the Appellant’s identification was direct and there was no need for an identification parade. Besides, at the time of his arrest, the Appellant was bleeding from a right finger that PW1 had bitten him, a fact that was confirmed by PW2. Although the Appellant was not taken to hospital for examination for a confirmation of this fact, the same does not lessen the fact that he was bitten on the finger as confirmed by PW1 and PW2. Furthermore, PW1 lost two lower incisor teeth that were pulled out as the Appellant tried to free his hand from PW1’s mouth. The injury on PW1 confirmed the violent manner by which the robbery was orchestrated. This was confirmed by PW4, Dr. Kamau who examined PW1 and produced his medical examination report.

Other elements of the case were established by the fact that PW1 lost money in the sum of Ksh. 8,380/ that the Appellant’s accomplice escaped with. I do find in the circumstances that the ingredients of the offence of robbery with violence as set out under Section 296(2) of the Penal Code were prove beyond a reasonable doubt.

With regard to the Appellant’s defence, the same was an alibi. However, this is a case in which he was seen at the scene, was pursued therefrom and caught without losing his sight. As such, the alibi defence is ultimately ousted and was unavailable to him.

In the end, I find that the prosecution’s case was proved to the required standard. The appeal has no merit and I dismiss it accordingly. I uphold both the conviction and sentence.

Dated and Delivered at Nairobi this 21st day of November, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Appellant present in person.

2. Miss Akunja for the Respondent.