[2017] KEHC 2049 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 17 OF 2015

(An appeal from the original conviction and sentence in Criminal Case No. 1659 of 2014 in

the Senior Principal Magistrate’s Court at Narok, R. v. George Maina)

GEORGE MAINA................................APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of death in respect of the offence of attempted robbery contrary to section 297(2) of the Penal Code (Cap 63) Laws of Kenya.

2. The state has supported his conviction and sentence.

3. The appellant was convicted on the direct evidence of Richard Omwari (PW 1) who was the complainant and that of Muniu Ismail (PW 2).

4. The appellant made an unsworn statement in his defence. The appellant’s defence is that he was called by his employer to the scene of crime where he was hit by PW 2. As a result of being hit by PW 2, he became unconscious and thereafter he only saw police officers surrounding him.

5. The appellant in his petition of appeal to this court has raised 9 grounds. In ground 1, the appellant has faulted the trial court for failing to inform him of his right to legal representation by an advocate, since he was charged with a capital offence. I find from the record of proceedings that the appellant was not informed of his right to an advocate of his own choice for his defence. This is a requirement under Article 50(2)(g) of the 2010 Constitution of Kenya. I further find that it is upon the court to inform an accused person of his right to advocate of his own choice. The issue that falls for consideration is whether the failure to do so voids the conviction and sentence of the appellant. I also find that the appellant although not informed of his right was aware of his right. The reason is that the 2nd accused in that court was represented by an advocate, Mr. Kiptoo. I also find that from the record of proceedings that the appellant effectively conducted his defence during trial. He cross examined all witnesses for the prosecution. In the end after being explained his rights, upon being put on his defence, he elected to make an unsworn statement. In the circumstances, I find that the failure to inform the appellant of his right to an advocate of his choice did not prejudice his right to the guaranteed fair trial. In the circumstances, I find that this ground is lacking in merit and is hereby dismissed.

6. In ground 2, the appellant has faulted the trial court for failing to assign an advocate to defend him since he was charged with a capital offence. He has also pointed out that lack of legal representation resulted in substantial injustice to him. In this regard, I find that there’s in place a Legal Aid Act No. 6/2016 which has not been operationalized. It is not automatic that this appellant would have benefited by being assigned counsel. The reason being that the legal aid scheme under that statute operates on the basis of a means test. In the circumstances, I find that this ground of appeal is without merit and is hereby dismissed.

7. Grounds 3 and 4 are interrelated and I will consider them together. The appellant has faulted the trial court for failing to appreciate that the appellant was framed by his employer, Muniu Ishmail (PW 2). In this regard the evidence of the complainant is that the appellant, among other robbers, attacked him and in the process he cut him with a panga. He then held him until the arrival of No. 61422 PC Hussein Mohamed (PW 4). Upon arrival this police officer found the appellant at the scene of crime with a cut wound on his head, from which he was bleeding profusely. The 2 car batteries which they intended to steal were put in evidence as prosecution exhibit 1 and 2. It is also the evidence of this police officer that the batteries were next to the appellant. Furthermore, the evidence of this police officer was that the garage compound had a stone wall at the back and the front is fenced with iron sheets and was well – lit with electricity light and moonlight. The defence evidence of the appellant was evasive. His evidence was that his employer PW 2 called him on phone and asked him to go to the garage. Upon arrival he was hit and became unconscious. When he regained his consciousness, he found himself surrounded by police.

8. The appellant cross examined the complainant in regard to how he gained entry into the garage. The complainant testified that the appellant gained entry into the garage by digging under the gate. It is clear from the evidence of the complainant and PW 2 that the appellant did not put the issue of him being framed by them in respect of this offence. The unsworn evidence together with the positive identification of the appellant were considered and his evasive defence was rightly rejected. In the circumstances, I find that these grounds of appeal lacks merit and are hereby dismissed.

9. In ground 5, the appellant has faulted the trial court for failing to find that the appellant had no knowledge of the law and could not adduce his evidence correctly, since he was not accorded the necessary support. In this regard, I refer to the response of the appellant after he was put on his defence on 3/6/2015 by the trial court in terms of section 211 of the Criminal Procedure Code. In response, he told the court that he was going to make an unsworn statement and had no witness. On 5/8/2015, the appellant made his unsworn statement stating that he was a mechanic. Furthermore, he stated that he was called on phone by Mr. Muniu (PW 2) who asked him to go to his yard. He complied and was hit upon arrival. As a result, he became unconscious. Apparently when he regained his consciousness, he found himself surrounded by the police. Thereafter, he was taken to Majengo to the house of the 2nd accused whose house was searched and nothing was recovered. Similarly, his house was searched and nothing recovered.

10. It is clear that the appellant was given the opportunity to adduce evidence in his defence. He did so. He did not require the knowledge of the law to adduce evidence in his defence. His evidence was properly analyzed and found to be incredible. For example, after complying with the request of his employer to go to the yard (garage) he complied. Upon arrival according to him, his employer (PW 2) simply hit him. In this regard, the evidence of PW 1 is that he is the one who inflicted a cut wound in the head from which he bled profusely. PW 1 cut him in response to being attacked by the appellant and his co-accomplices. This evidence is credible. It is supported by that of the investigating police officer (PW 4), who arrived at the scene of crime and found the appellant had been cut in the head and was bleeding profusely. It was also the evidence of this police officer that it was this appellant who led him to the arrest of the 2nd accused in the trial court.

In the circumstances, I agree with the trial court that the evidence of the appellant was evasive and incredible. I therefore find that this ground of appeal is lacking in merit and is hereby dismissed.

11. In ground 6, the appellant has faulted the trial court in failing to take into account that the appellant may have been allowed into the premises and framed for the offences in regard to which he now stands convicted. I find in this regard that the issue of the appellant having been framed was rightly rejected by the trial court. Furthermore, there is no evidence that the premises in question wherein the offence was committed was surrounded by a high stone fence. The evidence on record according to PW 1 was the appellant and his accomplices entered the garage compound by digging under the gate. In the circumstances, it is not open to the appellant to speculate as to how he himself and his accomplice gained entry into those premises. The evidence is clear t hat they dug under the gate and that is how entry was gained into the compound. In the circumstances, I find that this ground of appeal is lacking in merit and I hereby dismissed it.

12. In ground 8, the appellant has faulted the trial court for not taking into account that his constitutional right as set out in article 49 (f) (i) were infringed. He has further faulted the trial court for failing to find that the initial offences reported at the police station were altered. In terms of the provisions of article 49 (f) (i):

“A person who has been arrested should be arraigned in court as soon as reasonably possible but not later than 24 hours following his arrest.”

I find from the record of proceedings that the appellant was arrested on 2/10/2014 and was taken to court on 6/10/2014. In the absence of any explanation, it seems that his constitutional rights in this regard may have been infringed. In the circumstances, I find that the remedy, if any, lies in a civil action. The infringement does not vitiate the conviction and sentence of the appellant. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

13. In ground 9, the appellant has faulted the trial court both in law and fact that the police failed to lift his finger prints from the scene of crime, which in his view shows that the offence against him was framed. In this regard, I find that there was ample evidence of the positive recognition of the appellant by PW1, PW 2 and PW 3. The unsworn evidence of the appellant did not even suggest that he was framed by his employer PW 2. In the circumstances, I find that this ground of appeal is lacking in merit and is hereby dismissed.

14. I have considered the submissions of counsel for the appellant and the authorities cited. In his submission, I find that those authorities are distinguishable on the facts.

15. This is a first appeal. As a first appeal court according to Okeno v. R (1972) EA 32, I am required to reassess the entire evidence tendered at trial and make my own findings. I have done so and I find that the appellant was convicted on sound evidence.

16. The sentence of death that was imposed upon the appellant is authorized by law.

17. The upshot of the foregoing is t hat the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 11th day of October, 2017 in the presence of Mr. Kiptoo for the Appellant and Ms Nyaroita for the Respondent.

J. M. Bwonwonga

Judge

11/10/2017