[2017] KEHC 48 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CR. APPEAL NO. 85 OF 2016

FRANKLINE OTIENO OLANGO........APPELLANT

=VERSUS=

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

(An Appeal from the original conviction and sentence of Hon. C.M MAUNDU (SPM) in CR. CASE No. 64 of 2015 at Kwale Law Courts on 19/07/2016)

JUDGMENT

1. The Appellant was convicted and sentenced to death for the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the penal code.

2. The particulars of the charge were that on 18/01/2015 at Diani Beach Area, Diani Location in Kwale County within Coast Region, the accused person while armed with a dangerous weapon namely a knife robbed NELSON NJENGA of Ksh. 22,500/=, a mobile phone make Huawei P6 valued at Ksh. 40,000/= and a wallet valued at Ksh. 300/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence against NELSON NJENGA.

3. The prosecution evidence in summary was that on 18/01/2015 at about 2 a.m. the complainant (PW1) was at Tandua night club at Diani Beach when he decided to leave the night club and go home.

4. When he went to pick his car which was parked behind the night club, he found the Appellant in this case who pretended to be a security officer. PW1 said he told the Appellant that he is a good man. The Appellant removed a knife and frisked the complainant and took his phone make Huawei worth Ksh. 40,000/= and his wallet which contained his identity card, NHIF card and ATM card from Equity Bank and cash Ksh. 22,500/=.

5. PW1 (the complainant) said he was able to identify the Appellant as there were lights at the parking. He said the man was wearing a pair of shorts. He said after the incident he shouted and some boda boda operators who were about ten (10) metres away came. He told them he had been robbed. When he gave them a description of the attacker they told him they knew him and they volunteered to help him. Two of the boda boda operators, Muriithi (PW3) and Bernard recorded statements.

6. At 8. 00 a.m. the following morning PW1 received a message from Bernard through his wife's phone that the Appellant had been spotted at Mandigo area. PW1 went to Diani police station and he accompanied two police officers to the scene. He went to Mandigo area and parked his motor vehicle on the road side. He saw the Appellant crossing the road wearing the same clothes he was wearing when he attacked him. The two officers arrested the Appellant and recovered his wallet from him. The complainant (PW1) said the wallet was marked with his initials (N.N). It contained Ksh. 882/=. The cards and the rest of the money were missing. The Appellant took the officers to his house. It was an empty house where they did not recover anything.

7. PW3, ELIAS MURIITHI said he saw the complainant and the appellant conversing on the material night. After a short while the complainant told them he had been robbed. PW3 assisted in arresting the Appellant.

8. The Appellant in his statement of defence said that on 18/01 /2015 at 9 a.m., he left his home to go and buy intestines about 70 metres from his house. He met a motorcycle with 3 people riding on it. The motorcycle rider pointed at him and said "Ni huyu". The two riders alighted and handcuffed him and the following day he was charged with the current offence.

9. The trial court found the Appellant guilty as charged and convicted him and sentenced him to death.

The Appellant has appealed against conviction and sentence on the following grounds:-

(i) That the learned trial court Magistrate erred in law and fact in basing my conviction on strength of single identifying witness thus PW1 without considering the dangers of so doing when given other facts that:-

(a) The source of light at the alleged scene of crime and the duration under observation was not brought within measurable margins to be safely depended by a court of law to sustain conviction in a case of this magnitude.

(b) There is no suggestion that PW1 had given my description to PW2 police constable NGIGI who received his initial report thus leaving his identification claims un-supported.

(c) They failed the rule of law by failing to prove his identification claims through a well conducted identification parade as mandated by law under Chapter 46 of police force standing orders.

(ii) That the learned trial court Magistrate erred in law and fact in connecting my arrest with the matter in question without proper finding the same was not fair when given other facts that:-

(a) I was arrested with nothing in criminative to link me with this matter.

(b) PW1 who claimed to have been robbed of his wallet did not say so in his initial report to police.

(c) He has likewise failed to report in his initial report to police that he had put a mark on the wallet leaving his identification on the wallet an afterthought.

(iii) That the learned trial court Magistrate erred in law and fact by failing to consider the glaring contradictions and inconsistencies in the prosecution case contravening section 163 (1) (c) of the Evidence Act.

(iv) That the learned trial court Magistrate erred in law and fact in adequately rejecting my defence without giving any reason as to why it could not stand against the fabrication of prosecution case which lacked no any corroboration.

10. I have re-evaluated the evidence in this case bearing in mind that Idid not have the advantage of seeing the witnesses. This being a first appeal, it is incumbent upon this court to re-analyse and re-evaluate the evidence adduced before the trial court and come up with its own conclusion while at the same time bearing in mind that I did not have the advantage of seeing the witnesses testify. This role is in line with well-known and established principles of law which have been cited with approval in numerous cases. For example, in Kiilu &Another Vs Republic the court citing Okeno v. R held:-

"An appellant on a first appeal is entitled to expect, the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusions; 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."

11. My findings are as follows:-

(i) The main ground of appeal is that the identification of the Appellant was not proper. This was considered by the Court of Appeal in the case of John Njeru Kithaka &Ano. Vs. Republic Criminal Appeal No. 436 of 2007. The court stated as follows;

"... On identification, the law is now well settled and that is that a trial court has the duty to consider with utmost care, evidence of identification or recognition before it bases conviction on it. In particular, if the conditions under which such identification is purported to have been made were not favourable…."

(ii) I find that although the incident occurred at night at 2 a.m., the Appellant was properly identified as there were security lights at the scene of crime. The complainant's testimony was also corroborated by that of PW3 who saw the Appellant conversing with the Complainant and also the complainant's property recovered from the Appellant at 9. 30am-a short while later.

(iii) Again, in the case of ABDULLAH BIN WENDO VS. REX 20 EACA 166, the Judges of Appeal emphasized the need for careful scrutiny of the evidence of identification by a single witness before basing any conviction on it. The Court held as follows;

"Subject to certain well known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identificationespecially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error. "(emphasis is mine)

(iv) I find that in this case, the prosecution did not rely on the testimony of a single witness, the Complainant's testimony was corroborated by that of PW3 and I also find that the trial Magistrate properly relied on the doctrine of recent possession of stolen property. There is also evidence that Appellant engaged the complainant in a conversation before the attack giving him an opportunity to identify him.PW3 saw the Complainant and the Appellant conversing shortly before the attack. When the Appellant was arrested, he was wearing the same clothes.

(v) I also find that all the ingredients of robbery with violence were proved. In the case of Mohamed Ali v Republic [20131 eKLR the court held as follows:-

" The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of OLUOCH —VS — REPUBLIC [1985] KLR where it was held:- "Robbery with violence is committed in any of the following circumstances:-

a. The offender is armed with any dangerous and offensive weapon or instrument; or

b. The offender is in company with one or more person or persons; or

c. At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person " [our own emphasis].

The use of the word OR in this definition means that proof of any one of the above ingredients is sufficient to establish an offence under section 296 (2) of the Penal Code Two ingredients of Robbery with Violence under section 296 (2) have been shown to have existed and that is sufficient to prove the offence."

(vi) I find that the Appellant was armed with a knife and he threatened to use violence against the Complainant during the robbery. In the circumstances, I find that the ingredients of the offence were proved to the required standard.

(vii) I accordingly find that the conviction against Appellant is secure and the sentence lawful and I dismiss the Appellant's Appeal and confirm both the conviction and sentence.

Dated, Delivered and Signed at Mombasa this2ndday of October, 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE.