[2017] KEHC 1858 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL. NO 142 OF 2014

GEOFREY MUTETI MUSYOKA....….APPELLANT

VERSUS

REPUBLIC……………..…….…...RESPONDENT

(Appeal from Original Conviction and Sentence in Criminal case No 964 of 2012 By AG.P rincipal Magistrate P.O.Ooko sitting at Mavoko Law Courts dated 17th July, 2014)

JUDGEMENT

INTRODUCTION

1. The Appellant, Geoffrey Muteti Musyoka was charged with the offence of Robbery with Violence contrary to Section 295 of the Penal Code as read with Section 296 (2) Cap 63 Laws of Kenya.

2. The Particulars of the offence were that on the 16th day of December,2012 at Mlolongo Township in Athi River District within Machakos County robbed off Gladys Wairimu of Kshs.700/= and a Siemen phone valued at Kshs 3000/= and at or immediately before the time of such robbery used actual violence to the said Gladys Wairimu.

3. The Appellant denied the charges and a plea of not guilty was entered on 17/02/2012. The Prosecution called six (6) witnesses in support of their case and the accused gave an unsworn statement in his defence without calling any witness.

4. The Trial Magistrate having been satisfied that the prosecution had proved its case beyond reasonable doubt proceeded to convict and sentence the appellant accordingly to death as stipulated by the Penal Code for the offence committed.

5. The appellant being dissatisfied by the decision of the trial court appealed against the judgment on the following grounds;

i. That the appellant was substantially prejudiced and confused and unable to prepare his defence properly due to being charged with a duplex charge hence his conviction was manifestly unsafe.

ii. That the learned trial magistrate erred both in law and facts and misdirected himself by convicting him in reliance on identification evidence without ruling out altogether the part of the identifying witness.

iii. That the provision of Section 150 of the CPC was violated as essential witnesses like the members of the public who effected his arrest were not summoned to give evidence.

iv. That the case for the prosecution was not proved as required by law.

6. Both the Appellant and the Respondents filed their written submissions in response to the issues raised.

Appellant’s Submissions

7. The appellant in his submissions indicated that he was charged with a duplex charge hence making it difficult for him to prepare his defence properly. He went on to say that the offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal code.

8. He went on to rely on Kasyoka- Vs- Republic (2003) KLRwhere it was held that it was a fundamental mistake and not normally curable. The reason for this is that when a charge is duplex and an accused person goes through a trial, the fairness of the process is fundamentally compromised as it is not clear to him what the exact charge confronts him. As a result he may not be able to prepare a proper defence and this is clearly prejudicial and may amount to a failure of justice. Quoting Laban Koti –Vs- Republic (1962) EA 439where it was held that in deciding whether there is duplicity in a charge, the test is whether a failure of justice has occurred or the accused has been prejudiced.

9. Further he quoted Joseph Njuguna Mwaura and Others-Vs-Republic .Criminal Appeal No.5 of 2008 where it was stated that:-

“the ingredients that the appellant and for that matter any suspect before the court on a charge of robbery with violence in which more than one person takes part or where dangerous or offensive weapons are used or where the victim is wounded or threatened with actual bodily harm or occasioned actual bodily harm is section 296(2) of the Penal Code.”

He went on to state that such ingredients ought to be explained to such accused person so as to enable him know the offence he is facing and prepare his case. And it would therefore be wrong to charge an accused person facing such offence with robbery under Section 295 of the Penal Code.

10. He went on to point out that the law with regard to defects in the charge sheet is well settled, placing reliance on Kilome- Vs- Republic (1990) KLR 194where it was held that the paramount consideration in determining whether or not a defect in the charge is incurable or not is whether there is prejudice occasioned to the accused in putting up his defence because of the words used in the charge sheet.

11. On the second ground of appeal on identification the appellant referring to what the trial magistrate said with regard to identification in the judgment, submitted that the trial magistrate had erred in convicting him while relying on identification evidence by PW-1 without relying on the possibility that there could have been an error on the part of PW1.

12. He went on to allege that based on the circumstances of the case there is a likelihood that he might have been mistaken, a factor that the trial magistrate had overlooked. He went on to say even from the report at Mlolongo Police station the complainant had not identified the appellant. He relied on Francis Kariuki Njiru and 7 others-Vs-Republic (2001) eKLRwhere it was held that:-

“The law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if stratified that the identification is positive and free from possibility of error.

13. Despite the fact that the incident had happened in broad daylight, the appellant went on to say the circumstances could have led to mistaken identity because the complainant claims that she identified him while he was strangling her. He says that such evidence should have been admitted considering the accused was a complete stranger to the complainant.

14. He quoted the case of Kimathi Nyaga –Vs-Republic Criminal Appeal No.109 and 116 of 2012;court of appeal held that “the evidence of visual identification in criminal cases can cause miscarriage of justice if not carefully tested. A court must always satisfy itself that in all circumstances it is safe to act on such identification.’’

15. On the third ground of appeal where he said that the trial magistrate had failed to summon the other members of the public, he indicated that the trial magistrate had erred in proceeding to convict him without summoning the passersby who the complainant alleged helped her and the KWS wardens who helped in his arrest. He indicated that this was contravening Section 150 of the Criminal Procedure Code. He placed reliance on Bukenya Vs Uganda (1972) EA 549where it was stated that although the prosecution have a discretion to decide who are the material witnesses or make available all witnesses necessary to establish the truth even though their evidence may be inconsistent. The court itself has the duty to call any person whose evidence appears essential to the just decision of the case ……….’’Further he relied on the case of John Kenga –Vs-Republic Criminal Application No.181/84 (CA) (NRB), wherethe appellant was acquitted for the facts that some of the witnesses were not summoned to clear doubt of their arrest especially those who arrested him.

16. In conclusion the appellant stated that during trial he had indicated to court that the complainant had wished to withdraw the matter, but such sentiment were overlooked by court. He prayed that the court do consider the application for judicial authority under the principles of alternative dispute resolution through reconciliation mechanism Pursuant to Article 159 (2)(c) of the Constitution of Kenya, and that the complainant was willing to swear an affidavit of reconciliation on her own will.

Respondents Submissions.

17. On the ground of duplicity the respondents submitted that they concede that the charge was duplex, however that notwithstanding the appellant during the trial was aware that he was facing the charge of the offence of Robbery with violence and besides there was enough evidence to prove that the Appellant committed the offence as charged since all the ingredients for the offence to be proved were presented by the prosecution through its evidence.

18. On the second ground they submitted that there was no doubt that the accused had been positively identified by the complainant. On the third ground the respondents dismissed it and said it was baseless and his rights were not violated since he was re-arrested and the arresting officer PW3 came and testified.

19. On the last ground the prosecution submitted hat their case was watertight hence leading to the conviction. The court having analyzed the evidence produced and confirmed that all the ingredients of the offence of robbery with violence were proved, was satisfied that the prosecution had proved its case beyond reasonable doubt and therefore proceeded to convict and sentence the Appellant. They prayed to court to uphold the conviction and confirm the sentence.

Determination

20. This being a first appeal I am guided by the principle laid in Okeno Vs. [1925] EA 32 . I am therefore required to re-evaluate the facts afresh, assess it and make my own independent conclusion. I have considered the appeal and the submissions tendered herein. The main issues that falls for determination are:

a. Whether indeed there was duplicity of charges, and what effect it has on the suit.

b. Whether there was enough evidence tendered to convict the accused with the offence of robbery with violence.

21. The first issue to resolve here is whether indeed there was duplicity of the charges. What constitutes a good charge is explained under Section 134 of the Criminal Procedure Code which reads as follows:

‘’Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged’’.

Section 135 (1) & (2) provides for instances where Joinder of counts in charge or information is allowed. They read as follows:

1. ‘’Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

2. Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count’’.

From the above provisions it is correct to state that duplicity of charges would occur in instances where more than one offence is charged in one count. In our instant case the appellant was charged with the offence of robbery with violence under Section 295 as read together with Section 296(2) of the Penal Code Act. Section 295 of thePenal Codeprovides as follows:

"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".

On the other hand, Section 296 of the Penal Code states as follows:

"(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

22. Placing reliance on the case of Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, where a five Bench decision of the Court of Appeal after considering a number of cases, stated as follows:

"We reiterate what has been stated by this Court (sic) in various cases before us: the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides that 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 steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge".

Based on the foregoing it would therefore be in order to admit that indeed the charge was duplex and the Appellant ought to have been charged under Section 296(2) of the Penal Code alone. However the entire proceedings leave no doubt that the Appellant was aware that he was facing a charge of robbery with violence. I find the Appellant suffered no prejudice in the trial since the witnesses all gave evidence relating to the offence of robbery with violence in which the Complainant had not only been robbed but assaulted as well. The presence of Section 295 of Penal Code did not at all occasion prejudice on the accused and therefore I find the irregularity did not occasion a miscarriage of justice. The error is readily cured by Section 382 if the Criminal Procedure code.

23. On the ground of evidence I find that the prosecution proved its case beyond reasonable doubt. The witnesses who gave evidence were straight forward and there were no gaps left. The Appellant was positively identified by Complainant as incident took place in broad daylight at 9. 00 a.m. The injuries sustained were established by the Doctor. The complainant was robbed of money and property. The failure to call members of public who participated in the arrest of the Appellant is not fatal since the Appellant was re-arrested by the police who later tendered evidence on the aspect of arrest. Besides the Complainant positively identified the Appellant as the assailant as it was during the day at 9. 00 a.m. The Appellant’s contention that the trial court disregarded the complainant’s request to withdraw the complaint against him, it must be pointed out that the nature of the offence was one that required the Respondent to consider before withdrawal. Indeed the offence was a serious one and not one of common assault permitted by Section 176 of the Criminal Procedure Code. As the issue of the attempted reconciliation was not raised and addressed before the trial court, I find the same is not available to the Appellant to raise it on appeal.

24. In conclusion therefore I do find that the trial magistrate did not err in convicting the Appellant. The Appeal is dismissed and the conviction and sentence is upheld.

It is so ordered.

Dated, signed and Delivered at Machakos this 8th day of November, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Geoffrey Muteti Musyoka the Appellant

Saoli for the Respondent

Kituva - Court Assistant