[2011] KEHC 3180 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

[ CORAM : KOOME AND AZANGALALA, JJ]

HC.CRA. NO. 25 OF 2008

BETWEEN

FRED KHISA MAKHANU......................................................................................APPELLANT

AND

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

[Appeal from the Judgment of the Senior Principal Magistrate’s Court at Kitale {P.N. Gichohi, (P.M.)}

dated 15/5/2008 in SPMC CRC. No. 5526 of 2005]

JUDGMENT

The appellant, Fred Khisa Makhanu, together with Fred Musembe Masinde (hereinafter “the Co-accused”) were charged with the offence of Robberywith Violence Contrary to section 296(2) of the Penal Code (Cap 63 Laws of Kenya). It was alleged that the appellant and the co-accused, while in the company of others not before the court and while armed with offensive weapons, namely, pangas and rungus, in the night of 4th May,2005, at Mbao Farm in Trans-Nzoia District within Rift Valley Province, robbed Z.M.M of three suits, one car battery, four blankets, five small suits, three full dresses, one T.V - make great wall, one mattress, two pairs of uniforms and cash of 5,000/= all valued at Kshs 38,150/= and at or immediately after the time of such robbery used actual violence to the said Z.M.M(hereinafter “the Complainant”)

Before the trial ended, the prosecution entered a nolle prosequi against the appellant’s co-accused who was then conditionally discharged. After the trial however, the appellant was found guilty of the charge and was sentenced to death. Being dissatisfied with the conviction and sentence, he has appealed before us against both conviction and sentence on some eight grounds. The main challenge is however against the trial court’s findings on identification; conviction on inadequate and contradictory testimony; failure to call essential witnesses and failure to consider or adequately consider the defence.

When this appeal came up for hearing, the appellant, who was not represented, emphasized that the evidence of identification was insufficient given the suddenness of the attack on the complainant and inadequate lighting at the time. He also submitted that the complainant and his witnesses did not name the attackers in their first reports and further that they were inconsistent and contradictory in their testimonies.

Mr. Onderi, learned state counsel who represented the State, opposed the appeal contending that the appellant was positively identified both at the scene and in an identification parade properly mounted by the police. Whilst conceding that the robbery was staged at night, the learned state counsel submitted that circumstances favoured positive identification: he referred to the length the incident took, the communication held and the light from the moon and torches. In counsel’s view, the appellant was convicted on sound evidence.

As the first appellate court, it is our duty to re-examine and re-evaluate the evidence upon which the appellant was convicted and reach our own independent conclusion bearing in mind that we neither saw nor heard the witnesses testify and should give allowance for that (see Okeno –vrs. Republic [1972] E.A. 32).

The facts giving rise to the charge against the appellant were briefly as follows:-

Zacharia Masinde Mutoro, the complainant, on the material night, 4th/5th September 2005, between 1. 00 and 2. 00 a.m., was asleep in his house in Kiminini Mbao Farm. He heard the barking of dogs outside and woke up to investigate. There was moonlight and he saw the dogs running to the back of his store which was near flower bushes. Three (3) men were behind the bushes and one of them without warning cut him on the head with a panga. He identified the assailant as the appellant who told him that they had looked for him for long. He snatched a torch the complainant had and summoned his colleagues among them the co-accused. The appellant, according to the complainant, told him to admire his property for the last time. The thugs also demanded money and a mobile phone. They then forced the complainant back into his house and continued to demand for money as they inspected coats which were hanged on the wall. They took away Kshs 5,100/= and beat his children who included R.M (P.W.3). They tied his wife A.S.N (P.W.2) and went away with her. The appellant then cut him on the leg with a panga. According to the complainant, the ordeal took 2 hours. When the thugs left, he called his children who cut the rope he had been tied with. Neighbours were called who screamed thereby attracting the persons who had sold them (complainant) land. The latter took the complainant to Kitale District Hospital where he was admitted for treatment. The complainant lost items listed in the charge sheet.

While at Kitale District Hospital, the complainant was examined and treated by P.W.8, Crisandus Masinde who assessed the degree of injury he sustained as grievous harm. He duly completed a P.3 form which he produced at the trial.

The complainant’s wife, A.S.N (P.W.2), was with him at the time of the robbery. She testified that when her husband went outside to investigate, she heard noises outside her children’s bedroom. She peeped through a window and flashed her torch. She saw a group of people wearing muffins and caps. The people ordered her to switch off her torch and cover her face. The people brought her husband to the house as he bled from his head. The thugs demanded money and mobile phones and said they would kill her husband. She directed them to her husband’s coat where there was 3,100/= which the thugs took. They also took the other items stated in the charge sheet after which they cut him on the legs. Two of them took her about 2 kilometres away from the house and raped her. They then ordered her back with a warning not to report to anyone. She started going back but got scared and went into a neighbour’s house where the ropes which she had been tied with were cut. She then walked home, where she found her husband bleeding profusely. She screamed for help thereby attracting neighbours who assisted her take her husband to hospital. She then reported to the police.

PW.3, R.M, the son of the complainant, testified that on the material night at 1. 00 a.m., he heard the sound of someone being dragged. He woke up and at the door, he met people, one of whom placed a panga at the back of his neck and ordered him back into the house. Before then, he had seen his father, the complainant being dragged along. Shortly thereafter, the appellant and the co-accused returned to where he was and ordered him and his siblings to go to the main house where they were ordered to lie down. The thugs then later left and after two hours, he untied the complainant whom he observed was bleeding from his leg and head. Neighbours then came and took the complainant to hospital. P.W.3 identified the appellant as a dark tall man wearing a cap and with a voice like that of an officer.

P.W.9, George Otieno Ojowi, a former Ag. I.P. was requestedby the Investigating Officer, P.C. George Amosa, to conduct an Identification Parade at which the appellant was a suspect. He did so and the complainant identified the appellant at the parade.

The appellant gave a sworn statement in which he narrated to the court how he had been arrested on 30th November, 2005, and exhibited for all to see at a market by Kiminini Chief before being taken to Kitale Police Station to face the present charge which he denied.

At the conclusion of the trial, the learned Principal Magistrate found that the appellant was positively identified by the complainant, his wife, (P.W.2) and his son, (P.W.3) at the time of the robbery. He also found that the complainant had also identified the appellant at a properly conducted identification parade mounted by P.W. 9. In those premises, the learned trial magistrate found that the defence put forward by the appellant did not affect the prosecution case.

On our own independent re-examination and re-evaluation of the evidence which was placed before the learned trial Magistrate, we have made the following pertinent observations. The prosecution case turned upon the testimonies of the complainant, his wife (P.W.2) and his son (P.W.3). Starting with the evidence of the son, we note that the appellant produced his statement recorded after the robbery. The statement was produced as “D Exh. 1”. In the entire statement, P.W.3 did not state that he could identify the assailants. Indeed, he did not give any description of them. The statement was made just less than a month after the robbery when his memory was expected to be fresh. Yet, he could not mention the physical features of the attackers. At the trial, P.W. 3 testified that he could identify one of the assailants by his voice which was like that of an officer. In cross-examination, he stated that he described the appellant to the police as dark, tall and wearing a cap. The learned trial Magistrate accepted P.W.3’s description of the appellant as “fitting”. He however, made no reference to his first statement referred to above which contained no description of any one. The learned trial Magistrate further observed that the appellant’s voice was unforgettable. That may very well have been the case but the distinguishing feature of the appellant’s voice had not been noted at the time of the robbery. In any event, P.W.3 talked of a voice like that of an officer. We are not aware of officers whose distinguishing mark is the voice.

P.W.3 did not know the appellant prior to the robbery. His description of the appellant in his statement was therefore crucial evidentially. As no description of the appellant was given in the said statement, the subsequent description at the trial became mere dock identification which we find worthless given that no identification parade was mounted at which he identified the appellant.

We have also re-examined and re-evaluated the testimony of P.W.2, A. S.N. She is the complainant’s wife and was with the complainant at the time of the robbery. On the identification of the appellant, she testified that she had not known the appellant prior to the robbery. In her own word:-

“ …. I did not now [know] this accused person before I saw him the first time that night, it is the accused who kept talking to me.”

Throughout her evidence in chief at the trial, P.W.2 did not describe the appellant. We do not find that surprising in view of her evidence that the people she saw that night were wearing muffins and caps and were flashing torches at her. In cross-examination, she stated that she was ordered to switch off her torch and cover her face with a blanket. She complied but however, left a space for peeping. She further admitted that in her statement to the police, she did not state that she identified the suspects. She admitted that she did not attend any identification parade which leaves her identification of the appellant as mere dock identification. We are also puzzled at the treatment P.W.3 gave to her alleged rape ordeal. Firstly, she alleged that she was examined at Kitale District Hospital’s VCT section. Yet, she produced no medical evidence of the visit. Indeed, no other medical evidence such as a P.3 was produced to support her allegation of rape. Rape is such a serious crime that we cannot understand why, if indeed it occurred, the appellant was not charged with the same. Secondly, P.W.3 admitted in cross-examination that she never mentioned the rape ordeal to the complainant, her husband, at all and that he heard about it for the first time during her testimony at the trial. It would also appear that if she indeed informed the police of the rape, they did not believe her and hence, the omission to charge the appellant with the same. Like the police officers, we have found it rather difficult to believe her. In our view, P.W.2 is given to exaggerating events. That aspect of her character came out in her testimony of the events subsequent to her alleged rape. In her own words:-

“I walked alone to my home. I found my husband bleeding profusely. I screamed for help. Neighbours came, my husband was in bad condition. My neighbours assisted me to (take) my husband to district hospital Kitale.”

The statement suggests that her screams attracted neighbours who came to assist her take the complainant to hospital. The statement was in sharp conflict with the testimony of her son P.W.3 R.M who stated as follows:-

“My father was on the floor. He was bleeding from the leg and head. He had been cut. He was not talking. He was in bad state. I cleaned the head and remained there. I did not scream or talk. After a while, neighbours came. It is my sisters who went to call neighbours as I was left …… Those who came were Joshua Mwando, Peter Namishi and others whose names I do not know. They started screaming; they borrowed a vehicle and took my father to hospital. I was left behind. My mother was not yet there”(underlining ours)

So, according to P.W.3, their neighbours were called by his sisters and the neighbours screamed on finding the complainant in his weakened state. They also took the complainant to hospital before P.W.2 returned. P.W.3 received support from P.W.5 Joshua Simiyu Mwangala. In his own words:-

“The following morning, Z’s child by name R came and reported to me that they had been robbed the previous night and that his father had been cut severally. I went there and found Z on the ground bleeding profusely. We were with Peter Namiti and his wife. We did not find Z’s wife. It was alleged that the robbers had taken her away ……. We took him to Kitale district hospital”(underlining ours)

Peter Namiti, P.W.7 gave similar testimony. He concurred with P.W.3 and P.W.5 that P.W.2 returned to the scene after neighbours had already been attracted to the scene.

In those premises, it is our view that P.W.3’s testimony required closer scrutiny than was given by the learned trial Magistrate. On our re-examination and re-evaluation of the same, we have come to the conclusion that the testimony on her identification of the appellant remained dock identification which was in any event weak.

We turn now to the evidence of the complainant. With regard to identification, he stated as follows:-

“I saw 3 men behind the bushes, without warning one of the 3 men cut me on the head with a panga. It is the accused person --- he said that they had looked for me for a long time to kill me. He snatched my torch …. Accused then called other people curdling [hiding] in the maize farm. They were 12 men. They attacked me, among the whole group, I was only able to identify the two by their faces, the one identified by face and body built and there [the] clothes they wore is the accused now in the dock and other is my late brother Fred Musembe. I knew him and was able to identify him too. I also noted the accused’s voice. He is the only one who talked. He was wearing a blue police shirt, black trouser and open shoes.”

In cross-examination, the complainant stated as follows:-

“It was not dark. There was no moonlight. There is no mention of moonlight in the statement. The statement reads, I identified a heavy tall man wearing a short jacket but that is not what I told the police. …. You held the torch for your colleagues to see. No one else had a torch.”

From the above testimony, the following has emerged. The source of light the complainant used to identify the appellant is not clear. Was it moonlight as he stated in evidence in chief? He did not maintain that source of light in cross-examination. He indeed changed and stated that there was no moonlight. Although he stated that it was not dark, he did not give any other source of light. The complainant was then moved into his house and the only source of light therein, according to him, was the torch the appellant had. We find it difficult to believe that in those circumstances, the complainant could identify any one. On his own admission, the attack upon him was sudden. He was cut on the head and according to P.W.3; he was dragged from where he was cut into the house. He was in a weakened state. Identification in that state would not have been free from the possibility of error. How did he describe his attacker when he made his first statement to the police? In his own words:-

“I identified a heavy tall man wearing a short jacket.”

And at the trial, he stated as follows:-

“I identified accused by his appearance (facial), his built physique, the clothes he wore and his voice”

He denied that he told the police what is alleged to have been in his statement. Which means that the description which the police had of the appellant from the complainant was defective. As regards the alleged identification by face and clothes, we have already observed that the circumstances then were not conducive to any positive identification given that the source of light was not given and what is alluded to moonlight is discredited.

We have, in the premises, come to the conclusion that the complainant did not give an adequate description of his assailant to the police to facilitate a positive identification. The poor description of the assailant greatly weakened the evidence of identification of the appellant at the Identification Parade mounted by P.W.9. Our view is not without authority.

In the case of Fredrick Ajode –vrs- Republic – [Cr. Appeal No. 87 of 2004] (UR), the Court of Appeal had the following to say on dock identification:-

“It is trite Law that dock identification is generally worthless and a court should not place much reliance on it unless it has been preceded by a properly conducted identification parade. It is also trite that before such a parade is conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.”

In the end, we entertain doubt that the appellant was positively identified. We resolve that doubt in favour of the appellant. That being our view of this appeal, we do not find it necessary to consider the other grounds of appeal. We allow the same, quash the appellant’s conviction and set aside the sentence of death imposed upon him. He should be set at liberty forthwith unless otherwise lawfully held.

DATED AND DELIVERED AT KITALE THIS 4TH DAY OF MARCH 2011.

M. KOOME

JUDGE

F. AZANGALALA

JUDGE

Read in the presence of :-

M. KOOME

JUDGE