[2004] KEHC 963 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 346 OF 2002

FRANCIS MWENDA RINGERA………………..……………………APPELLANT

Versus

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

(Appeal against undated judgment by C. D. Nyamweya, Senior Reside nt Magistrate, In the Chief Magistrate’s Court at Nyeri, Criminal Case No. 1224 of 2002).

JUDGMENT

The Appellant was charged with the offence of Robbery with Violence contrary to Section 296 (1) of the Penal Code, particulars alleging that on the night of 18th April 2002 at Nyeri Township, the Appellant jointly with others not before court robbed Lucy Wamboi Mwangi of cash Ksh.350/= and a wrist watch make Romano all valued at Kshs630/= using violence to the said Lucy Wamboi Mwangi.

There was count II in which the Appellant was charged with Rape contrary to Section 140 of the Penal Code. Particulars were that on the night of 18th April, 2002 at Nyeri Township the Appellant unlawfully had carnal knowledge of Lucy Wamboi Mwangi without her consent.

As an alternative to count II the Appellant was charged with Indecent Assault on a female contrary to Section 144 (1) of the Penal Code and the particulars alleged that on the night of 18th April 2002 at Nyeri Township the Appellant unlawfully and indecently assaulted Lucy Wamboi Mwangi by touching her private parts.

We find that this was a simple and straight forward case prosecuted by a prosecutor who did not care about important connecting links, details, consistency and truth before a magistrate who was no better than the prosecutor in those respects and as a result, they destroyed the case. Look at the name of the complainant, for example. In the charge sheet her name is written as Lucy Wamboi Mwangi. In the evidence of P.W.5, a clinical officer Peter Karanja, the complainant’s name is written as Lucy Wangui Mwangi. In the complainant’s own evidence and in the trial magistrate’s judgment appealed against, the name of the complainant is written as Lucy Wambui Mwangi. We are however, inclined to look at those different spellings as mere clerical mistakes which do not affect the substance of the case. But we reckon we may see more problems in the proceedings as we look at the recorded evidence.

The complainant, an accountant at Florida Bar who gave evidence as P.W.1, had at the close of business on 18-4-02 taken stock and carried the day’s collections to the bar owner and was walking to her residence at Kiawara after 10. 00 p.m. when she found three people on the way. They stopped her by force and demanded money. They had spotlights and the complainant did not know them. Having been held, the complainant slipped and fell down as she was being pulled backward on a wet and slippery ground.

Although she had told them she had no money, after receiving a few cuts at places on her right leg the complainant revealed to the attackers where her money, Sh.350/=, was and the attackers took the money.

Then one of them said he had found a woman. He pulled her and led her to an unfinished building where he raped her until 7. 00 a.m. when he released her. She went to her residence where she sought the assistance of P.W.3 Lucy Wahito Maina who accompanied her to report the matter to the Police and thereafter proceeded to hospital for treatment. They had taken the muddy clothes the complainant had been wearing to the Police.

The Prosecution’s case, which the Prosecutor made no attempt to bring out but the magistrate helped him to bring out, was that the long stay the complainant had with the Appellant enabled the complainant to identify the Appellant. No attempt was made by the Prosecutor to show whether there was light in the uncompleted building where the complainant was taken. But the trial magistrate said that the complainant’s stay with the Appellant until 7. 00 a.m. must have given the complainant good opportunity to identify the Appellant during daylight. The complainant was therefore able to know the Appellant when she subsequently saw him selling miraa and the complainant showed the Appellant to her friend who later showed the Appellant to the Police.

That unnamed and therefore unidentified friend did not give evidence and the evidence of P.W.4, the arresting officer was left in the hanging as to how he came to know the right person to arrest and charge with the offences in this case. P.W. 4 said:

“I received information that one person called Mwenda who had robbed the complainant of her money and watch……….was in the bar in Nyeri. We went to the bar called Super Marble bar and arrested him.”

At the end P.W.4 said:

“I had not known him before.”

Arrest five days after the attack. A kitchen knife alleged found hidden in his trouser. A watch the complainant claimed was hers which had been robbed and Shs.108/= were also alleged recovered from the Appellant. Complainant also claimed the knife was the knife the Appellant had and threatened her with it when raping her. She said it had been used to stab her during the robbery in the darkness where the person who was stabbing is not convincingly specified out of the three claimed to have been present although the complainant claimed in court it was the Appellant.

P.W.4 told the court that the Police were given “a tip off by the people in the bar.” He made no reference to friendship between any of those people and the complainant and he did not disclose any of those people and as a result none of them gave evidence against the Appellant. It follows that P.W.4 acted on hearsay and what he told the court regarding what he claimed those people told him about the Appellant was hearsay and inadmissible in evidence.

No evidence was adduced to show that the Appellant could not have any money or any knife or any watch, if true those exhibits were recovered from him. In his defence the Appellant who was unrepresented was very brief merely saying that he stayed at Kiawara; he was a miraa dealer. He denied the offences against him adding that the complainant, whom he had not known, could have confused him for another person. We do agree with that last statement.

This was a case in which any of the witnesses could say anything. It was possible for the complainant to claim any suspect arrested to have been one of those who attacked her and subsequently raped her. They could then assemble any items to claim had been recovered from the suspect in order to fix the suspect. One full month after the alleged attack the complainant told the court on 29th May 2002 that the Appellant was in court still wearing the clothes he was wearing on 18th April 2002 at the time of the attack.

From the building where she claims to have been raped, she walked up to her house.

After reaching her house she claims she was unable to walk and had to call another lady to take her to hospital. No evidence that motor vehicle was hired. It is therefore presumed they walked. Not direct to hospital because she was unable to walk; but through the Police Station where she reported the incident and left her dirty clothes. It was after that that she went to hospital and she did not tell the court that she was admitted although she claimed to have been stabbed seven times on the right leg.

The lady who accompanied her to the Police and the hospital added that the complainant’s right hand had human bite. That lady was Lucy Wahito Maina, P.W.3. The complainant never talked of human bite but she had witnesses who could perhaps imagine things and add them in the case. P.W.5, the clinical officer therefore came and told the court that he filled the complainant’s P3 on 2nd May 2002. He did not state whether he examined the complainant on that day but his evidence suggests that was the day he examined the complainant. He told the court:

“He” (meaning she) “came to the hospital with a history of rape and assault. She had soiled and bloodstained blouse. She h ad cut wound on the face, on the left palm, multiple injuries on the thigh. The object used was sharp. She was treated. She was bleeding from the genitalia and had bruises thereof.

The lab test indicated there was blood and pus cells and infection (Tri chomonas). I signed the P3 and now I produce it (Exh. No. 5).”

No lab test report produced and a question is: from where did P.W.5 get all that evidence on 2nd May 2002 two weeks after the incident and after the complainant had given her dirty clothes to the Police? Why did the complainant fail to talk of injuries on the face, the palm, on the thigh and bleeding from the genitalia and bruises thereof?

It should not be forgotten that P.W.2, Lucy Wanjiru stated in her evidence in court as follows:

“I work at Kiawara in a bar as a waitress. I stay at Kiawara. On 18. 4.02 at 11. 00 p.m. I was on duty when the complainant passed there and told me she was coming from work. I do not know where she went. I saw her the following day. When she came to my place of work she was okey.”

P.W.2’s evidence was left to stand as it is.

While the complainant gave no evidence of having identified the Appellant at the Police station, P.W.4 without evidence of Police identification parade told the court:

“The complainant i dentified

accused at the Police station.”

The complainant claimed to have seen the Appellant for the first time on 18th to 19th April 2002. She had not pointed out the Appellant to the Police for the Police to arrest him.

Even if the complainant’s friend were the one who pointed out the Appellant to the Police, which was not the case, for the Police to arrest the Appellant, it was important for the complainant to be taken to a Police identification parade, properly conducted, to see whether the complainant could identify the Appellant. If that was not done, as it appears to have been the case, P.W.4 ought not to have told the court that the complainant identified the accused at the Police Station. That is even if she did so without following the correct procedure. All that was there would remain to amount to dock identification, which is not useful in the circumstances of this case.

To conclude: with the type of evidence adduced in the trial against the Appellant in this case, where do we start with the truth and where do we end it in order to start the untruth? We have found no answer to that question. To crown the whole scenario, the Appellant was convicted on count I and count II. But while the sentence on count II was lawful, the sentence on count I was unlawfull as the Appellant was sentenced to death yet he was charged with robbery under Section 296 (1) of the Penal Code. In the first place, the learned trial magistrate ought not have convicted the Appellant on the evidence available. Secondly, if convicted, the Appellant should not have been sentenced to death on count I.

Accordingly, we do hereby allow the appeal of the Appellant. Quash his conviction on each count and set aside the sentence thereof. The Appellant be set at liberty forthwith unless detained in some other lawful cause.

Dated this 19th day of November 2004.

J. M. KHAMONI

JUDGE

H. M. OKWENGU

JUDGE