[2017] KEHC 5277 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 358 OF 2010

GEORGE KAROBA …………….…………….… …..……..……… 1ST APPELLANT

JOSEPH WAITHAKA ……....………………………………………… 2ND APPELLANT

VERSUS

REPUBLIC ……………………………………………………...…….. PROSECUTOR

(Appeal from the Sentence of the Chief Magistrate’s Court at Nakuru Hon. W. Kagendo – Principal Magistrate delivered on the 23rd November, 2010 in CMCR Case No. 103 of 2010)

JUDGEMENT

The two appellants namely GEORGE KAROBA (hereinafter referred to as the 1st appellant) and JOSEPH WAITHAKA (hereinafter referred to as the 2nd appellant) have both filed this appeal challenging their conviction and sentence by the learned Principal Magistrate sitting at the Nakuru Law Courts.

The two appellants were both arraigned in the lower court on a charge of ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE. The particulars of the charge were that

“On the night of 3rd January, 2010 at Likia Trading Centre in Nakuru District within Rift Valley Province, jointly with offensive weapons namely a panga and a rungu robbed ERNEST BARONGO of cash Ksh 1,000/= and at or immediately after the time of such robbery used actual violence to the said ‘Ernest Barongo’”.

Both appellants pleaded ‘Not Guilty’ to the charge and their trial commenced on 5/5/2010. The prosecution led by INSPECTOR OCHIENG called a total of six (6) witnesses in support of their case.

The complainant told the court that on 3/1/2010 at about 10. 00pm he left the Likia shopping centre to go home. As he walked on the road the two appellants accosted him. The 1st appellant was armed with a panga whilst the 2nd appellant had a rungu. The 1st appellant attempted to cut the complainant with the panga he had but the complainant held his hand. Then the 2nd appellant hit the complainant on the back of his head with the rungu. The complainant fell unconscious.

At 2. 00am the complainant recovered his senses to find his hat and his cash Ksh 1,000/= missing. He managed to go to his grandmother’s home and narrated to her what had befallen him.

PW2 TERESIA MORAA who is the complainant’s grandmother told the court that on the material day at 2. 00am she was asleep in her house. She heard a voice which she recognized as that of the complainant calling her. She got up to let him in. The complainant told PW2 that he had been beaten and robbed. The two went together to report the incident at the Likia Chief’s Camp. They then went to the Njoro Hospital where complainant was examined and treated for his injuries.

Later the complainant led the police to the home of the 2nd appellant and he was arrested. The 1st appellant was arrested as he returned from his charcoal business. At the close of police investigations both appellants were charged with the offence of Robbery with Violence.

At the close of the prosecution case both appellants were found to have a case to answer and each were placed onto their defence. The appellant’s each made an unsworn statement denying any involvement in the robbery against the complainant.

On 23/11/2010 the learned trial magistrate delivered her judgment in which she convicted both the appellants and sentenced each one to death. Being aggrieved by both their conviction and sentence the appellant’s filed this appeal.

The appellant’s who were both unrepresented during the hearing of the appeal opted to rely on their written submissions which had duly been filed in court. MR. CHIGITI learned State Counsel made oral submissions opposing the appeal.

I have carefully perused the written submissions filed by the appellant’s. The following issues have been raised as grounds of appeal.

- Identification

- Lack of Corroboration

- Shifting the burden of proof

The first issue to be determined is whether the incident described by the complainant did in fact amount to a robbery with violence. The complainant told the court that as he was walking home he was accosted two men who were armed with a panga and a rungu. The men assaulted the complainant, robbed him and left him lying unconscious on the road.

The fact that the complainant was assaulted on the material day is not in any doubt. PW2 the complainant’s grandmother told the court that when the complainant came home, he was swollen on the head and had cuts and bruises. Likewise PW3 PC THOMAS GUANTAI the officer who received the report told the court that when the complainant came to the police station his head was swollen and had been tied with a lesso.

Finally on this point PW5 JACKSON CHELIMO a clinical officer attached to Njoro Health Centre testified that he did examine the complainant on 5/1/2010 in their clinic. He noted swelling and tenderness on the head and left jaw. PW5 filled and signed the P3 form which was produced in court as an exhibit. The indisputable proof that the complainant did suffer injuries as he had alleged.

In the case of OLUOCH Vs REPUBLIC [1985]KLR 549 the court held as follows-

“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 other 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” (own emphasis)

The use of the word or in the above definition means that proof of any one of the three ingredients will suffice as proof of the offence of Robbery with Violence. In this case the complainant was attacked by more than one person. He was also assaulted and injured in the course of and in furtherance of the robbery. Therefore I find that this incident did amount to a Robbery with Violence as envisaged by Section 296(2) of the Penal Code.

The next issue is that of identification PW1 told the court that the incident occurred at about 10. 00pm. Undoubtedly it was dark. However the complainant told the court that he was able to see and identify his assailants due to the presence of bright moonlight on the night in question. In his testimony at Page 8 line 20 PW1 states

“There was moon. The moon was circular. That is a full moon. There was adequate light I could see up to the gate. I could see a person like 30 meters away ….”

Additionally PW1 told the court that he was able to recognize both the appellants as he knew them well. PW1 states at Page 9 line 23

“I recognized them [the appellants]. I am familiar to them. Karaba has been known to me for over 3 years. Waithaka had been my age mater since I was a child”

Thus aside from visual identification there exists evidence of recognition. In the case of ANJONANI AND OTHERS Vs REPUBLIC [1980] KLR 59 the Court of Appeal held that:-

“…… recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailants in some form or other”

Lastly on this issue if identification the appellant was able to give a very clear account of the role which each appellant played in the attack. He was clear that it was the 2nd appellant who had a rungu and who approached him first. PW1 states that the 1st appellant was armed with a panga PW1 goes on to state at page 9 line 2.

“…. So Karaba came running with the panga. I turned and saw him. Karaba lifted the panga to cut me. I lifted my hand and held Karaba’s hand. That is when Waithaka came with a rungu and hit me at the back of the head……Karaba hit me on the ribs then I fainted…..”

Given the graphic details which PW1 provided, I have no doubt that he was able to see his attackers very clearly.

I am mindful of the fact that the two applicants have been identified by one witness only. However, I am satisfied that in the circumstances, that there has been a clear, positive and reliable identification of both the appellants. The complainant gave cogent testimony and he remained unshaken under cross-examination by the appellants. I am satisfied that he was telling the truth.

Following the incident and after having sought treatment, the complainant did lead the police to the home of the 1st appellant PW4 PC FERCIUS NYAMU the arresting officer confirms that the 1st appellant was arrested from his house. The 2nd appellant was also pointed out by the complainant and he was arrested later.

Both appellants were placed on their defence and each gave a sworn defence. The trial magistrate dismissed their defences on the basis that they did not shake the prosecution case. I am of the same opinion. The defence amounted to no more than bare denials.

The prosecution in my view proved the charge beyond reasonable doubt. The appellant’s convictions were sound and I do confirm the same. The death sentence being the only lawful sentence for this offence is also upheld. This appeal fails in its entirety and is hereby dismissed.

Dated and Delivered in Nakuru this 13th day of March 2017

Both appellants present in person

Mr. Motende for DPP

Maureen A. Odero

Judge