[2017] KEHC 286 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL APPEAL NO. 27 OF 2016

(ROBBERY WITH VIOLENCE)

(CORAM: J.A. MAKAU - J.)

GEOFFREY OMONDI WAYODI....APPELLANT

VS

REPUBLIC……………..……….…RESPONDENT

(Being an Appeal against both the Conviction and Sentence

dated 24. 3.2016in Criminal Case No. 778 of 2013 in

Siaya Law Courtbefore Hon. H. Wandere – P.M.)

J U D G M E N T

1. The Appellant GEOFFREY OMONDI WAYODIwas charged with two counts. In Count I, he faced a charge of Robbery with Violence contrary to Section 296(2) of the Penal Code. The particulars of the charge of Count I, are that on 11th day of October 2013 at Mulaha sub-location in Siaya DistrictwithinSiaya County, with another not before Court, robbed James Juma Adongoof his NOKIA 1110 Mobile Phone valued at Kshs. 2,500/= and one whistle valued at Kshs. 150/= and immediately before or immediately after the time of such robbery used actual violence to the said James Juma Adongo.

In Count II, the Appellant faced a charge of Breaking into a building with intent to commit a felony contrary to Section 307 of the Penal Code.The particulars of the charge are that on the 11th Day of October 2013 at Mulaha sub-location in Siaya District within Siaya County with another not before Court broke a shop belonging to Millicent Esther Akoth Onyala with intent to steal from therein.

2. That the Appellant pleaded not guilty to all the two counts and after full trial was found guilty of Robbery with Violence, convicted and sentenced to suffer death as prescribed by Law.

3. Aggrieved by both the conviction and sentence, he preferred this appeal setting out four (4) grounds of Appeal being as follows: -

a. That, the trial court relied on uninvestigated evidence to convict and sentence the Appellant.

b. That, the Learned Trial Magistrate failed to consider defence of the appellant hence misdirected itself erroneously on its harsh decision.

c. That, the Trial Magistrate’s court did not observe the elements of Article 50(2)(c) of the Constitution of Kenya.

d. That, the Learned Trial Magistrate erred in law and fact I admitting shoddy prosecution evidence and as well failed to duly consider the contradictory evidence of the Investigating Officer.

4. At the hearing of the appeal, the Appellant appeared in person whereas M/s Maurine Odumba, Learned Prosecution Counsel, appeared for the State. The Appellant relied on written submissions in which he urged that the charge was defective; that the Trial Court erred in relying on circumstantial evidence as there was no direct or circumstantial evidence linking the appellant with the commission of the offence and that there were several co-existing circumstances weakening the inference of guilt; that there was contradictory evidence which seriously dented the Prosecution case and making it incredible; and that his Defence of Alibi was not considered.

5. M/s Odumba, Learned Counsel, conceded the appeal on the grounds that; there is no sufficient evidence to convict the appellant with the main charge but that of Breaking into a building with intent to commit a felony; that none of the allegedly stolen property was proved belonged to the Complainant; that all the ingredients of the offence of Robbery were not evaluated by the trial magistrate, and the prosecution case is riddled with many unexplained gaps and lastly the appellant’s defence was not rebutted.

6. I am the First Appellate Court and as expected of me have to subject the entire evidence adduced before the Trial Court to a fresh evaluation and analysis while bearing in mind that I neither saw nor heard any of the witnesses and have to give due allowance. I am guided by the Court of Appeal case which sets out the principles that apply on a first appeal. These are set out in the case of ISSAC NG'ANGA ALIAS PETER NG'ANG'A KAHIGA V REPUBLIC CRIMINAL APPEAL NO. 272 OF 2005 as follows:-

“in the same way, a court hearing a first appeal (i.e. a first appellate court) also has duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the Trial Court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same. There are now a myriad of case law on this but the well-known case of OKENO -VS- REPUBLIC (1972) EA 32 will suffice. In this case, the predecessor of this court stated:-

The First Appellate Court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) E.A. 570). 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 court's finding 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 Vs. Sunday Post, (1958) EA 424)”

7. Prosecution case forms part of the record of the appeal and I need not reproduce the same save to make a brief summary of the Prosecution case and the defence.

8. The Prosecution case is that PW1, James Juma Adongo, a watchman at Awelo was on 11/10/2013 guarding a shop of Millicent at Awelo, when while at the back he heard something being broken from the front side; proceeded to the front, switched his torch lights on and saw the door padlock on the ground having been broken loose but the door not yet opened. PW1 raised alarm and saw two people running away and hid in the nearby thicket. PW1 blew his whistle but no one came to his aid. That at 1. 00 am, the two people returned and ordered PW1 to sit down as they hit him with an iron bar on the head. That PW1 had a torch and so were the two hence he saw them and described them by their dressing, stating one had a jacket and the other a T-shirt. PW1 cried for help, attracting people who came as the two robbers ran away but one of them was caught by members of public. PW1 stated he was robbed of a phone NOKIA 1110 and a wrist watch ‘Oris’ by make. PW1 was taken to Siaya District Hospital and was treated. P3 was filed and the matter reported to police. P3 form was produced as exhibit P1. PW1 stated he identified one of the suspect to police at night, however, nothing was recovered from the suspect. PW2, Millicent Esther Akoth Onyala stated she received a call from PW1 about the attack and proceeded to the scene, found PW1 injured, padlock of the shop broken but nothing stolen. She identified the padlock as MFI P2. That on going to police station, the appellant was shown to PW2 before recording her statement. PW3 evidence is that she heard the screams but did not witness the incident. PW4, James Ndunda Kioko, testified that on 11/10/2013 at about 1. 00 a.m. he was walking home, when he heard noises and with the aid of his torch light saw PW1, a watchman, crying saying he had been robbed and PW4 then saw two people one of whom was Geoffrey Wayodi, who was wearing a leather jacket and another person who had a jumper and who ran away. PW4 arrested the Appellant as he cried for help. That the police came and re-arrested the appellant. PW5, Nyamnuembe Simon, a Clinical Officer attached to Siaya County Referral Hospital produced, P3 form in respect of PW1, assessing the degree of his injury as harm. PW6’s evidence is that he re-arrested the appellant at the police station and carried out the investigations in this matter. He produced the padlock MFI 2 as exhibit P2. He averred the complainant was robbed of his phone NOKIA Phone 1110 model valued at Kshs. 2,500/= urging nothing was stole from the shop.

9. The Appellant on being put on his defence, he opted to give sworn statement and called one witness. The appellant denied the charges. He urged he had been arrested in October 2013 and was in prison and that the present charges were read to him in April 2014. He stated that on 11/10/2013 he had gone to play football and got arrested for no apparent reason. DW2, No 89119527 Cpl John Mathenge Ngumi, denied receiving a call from D.A.P.C Siaya Sub-County however, he stated in 2013 he took Aps and proceeded to Awelo and met a crowd of people assaulting someone and was told the person was a total stranger and a shop had been broken in Awelo, he was suspected, as he had gone to take “pombe” in the area to be a suspect. DW2 then arrested the appellant and was led by members of public to the scene where he found a watchman. That they escorted the suspect and the watchman to the police station.

10. The issue for consideration is whether the charge of robbery as framed was defective? In the instant case, the appellant is faced with a charge of robbery with violence contrary to Section 296(2) of the Penal Code. A charge of robbery with violence has three essential ingredients that must be proved by the Prosecution. In Johana Ndungu V Republic, CRA No. 116 of 1995, the ingredients for the charge of robbery with violence were stated to be: -

i. If the offender is armed with any dangerous or offensive weapon or instrument or

ii. If he is in company with one or more other person or persons or

iii. If, at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other violence to any person.

11. Definition of “robbery” is given under Section 295 of the Penal Codeas follows: -

“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”

12. I note in this case, the evidence against the Appellant is the testimony of a single witness coupled with circumstantial evidence relating to his arrest. In this case of Charles O. Maitanyi V Republic (1986) KLR 198, the Court of Appeal held that:

“Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification.”

13. In the instant appeal, it is the duty of this court to examine if the court below erred in law in finding the prosecution had proved the essential ingredients of the charge of robbery with violence and if the appellant was properly identified as the perpetrator of the crime. I am alive to the fact that prove of any one of the ingredients of robbery with violence is enough to sustain a conviction under Section 296(2) of the Penal Code. In the instant case, the evidence of PW1 is that he was attacked by two people who ran away. Considering the appellant was attacked by two people, one of the ingredient of the offence of robbery with violence was proved. Whoever attacked the Complainant was also armed with an iron bar and was in company of one or more persons. I therefore find the charge is not defective.

14. The next key issue for consideration is the identity of the person(s) who attacked the complainant. The circumstantial evidence in this case relates to the arrest of the appellant. PW1 talked of a chase, whereas PW4, who arrested the appellant said he saw two people but did not state what they were doing, but were near PW1, as one of them ran away while the appellant did not, hence he arrested the appellant. PW1 who according to PW4 was near PW4, was near PW4, never corroborated PW4’s evidence and he stated when he cried for help, the attackers ran away and one was caught by members of public. In Sawe V Republic (2003) KLR 364, the Court of Appeal stated as follows: -

“(1) In order to justify on circumstantial evidence, the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt;

(2) Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on;

(3) The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”

15. In the instant case, PW1 testified members of public chased the robbers and caught up with one of the robber from the scene. PW1 did not identify nor did he recognize the Appellant as one of the person who attacked him as he stated one of the attackers had a jacket while the other had a T-shirt. That after one of the robbers was arrested by members of public; PW1 did not identify him by his dressing or otherwise. He claimed he identified the Appellant to the police that night but did not state what it was that made him identify the Appellant to the police. PW1 did not give his employer, PW2 the description of the robbers either by their appearances or dresses. PW3 talked of a suspect who was arrested while wearing leather jacket and a folded trouser. PW3 and PW4 evidence contradicts PW1’s evidence who never talked of the person who robbed him being in a leather jacket. That there is no evidence that the arrest of the Appellant took place immediately after the attack and how far from the scene of crime as PW4 stated it was quite a distance. PW4 was walking home and it was not ruled out that at that particular moment there were no other members of public walking along the road. PW4 was using. DW2 stated the Appellant was arrested as he was suspected he had gone to take “pombe” in that area and was suspected because he was a stranger. Suspicion however strong it cannot sustain a conviction. There has to be cogent and direct or circumstantial evidence for conviction to be found against a suspect. In my considered view, I find the chain of events and the unexplained interval and distance from the scene of crime and the fact that members of public were still on the public road at the material time of the attack and subsequent arrest and the Appellant conduct at the time of the arrest of the Appellant was not taken into account by the trial court in arriving at the conclusion that the appellant was one of the person who attacked the complainant. On the record I find there are other co-existing circumstances that would weaken or destroy the inference that the appellant was one of the persons who attacked the complainant. The record show the appellant was arrested by PW4 near the complainant, whereas PW1 stated his attackers ran away. PW4 talked of the person he arrested as being not one of the people who were running away; he talked of the appellant being in a leather jacket as opposed to a general jacket as stated by PW1. The appellant’s conduct was not a conduct of a guilt person as he did not ran away when PW4 found him near PW1. He could have not been one of the attackers and he did exhibit conduct of a guilt person by running away or resisting the arrest by PW4 who arrested him alone. PW1 who according to PW4 was near the scene never stated to PW4 that the person he had arrested had robbed him. Similarly, PW2 testified when they went to the police, they were shown the appellant as a suspect. DW2 , a police officer, who went to where the appellant had been arrested stated two members of public led them to the scene where the watchman was, which points to the fact, that the appellant and the watchman was not at the same place and that weakens PW4’s evidence and affects its credibility. In view of the above, I am doubtful as to the identification and connection of the appellant with the commission of the offence, he faced at the material time. I am therefore not satisfied that the appellant was properly identified as one of the attackers of the Complainant and I find that there is high chances that the appellant was an innocent passerby or stranger who was caught in the mix up and a high possibility, that the appellant was not one of the persons who attacked the complainant.

16. The Appellant contends that his defence was not considered by the trial court. The appellant’s defence is that he was arrested on his way from a football match. The trial court noted that the appellant was arrested which he did not deny and dismissed the defence. The trial court erred as it failed to evaluate the appellant’s defence, failed to analyse the same and failed to consider whether the appellant though arrested was properly identified and placed at the scene of crime. I have re-evaluated the defence of the appellant and that of his witness DW2 which the trial court did not evaluate and find that, that failure prejudiced the appellant’s case as his evidence and that of his witness created doubts as to whether the person arrested was one of the persons who had attacked the complainant.

17. The State Counsel concedes the appeal. I have considered the appeal and have found that the State Counsel correctly and rightly concedes the appeal.

18. The upshot is that the appeal succeeds. The conviction is quashed and the sentence set aside. The Appellant is set at liberty forthwith unless otherwise lawfully held.

DATED AND SIGNED AT SIAYA THIS 1ST DAY OF DECEMBER 2017

HON. J.A. MAKAU

(JUDGE)

DELIVERED IN OPEN COURT.

In the presence of:

Appellant in Person - Present

M/S Odumba:for State

Court Assistants:

1. Kevin Odhiambo

2. Beryl Kachuodho R.

HON. J.A. MAKAU

(JUDGE)