[2017] KEHC 691 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OD KENYA AT KIAMBU

CRIMINAL APPEAL NO: 9 OF 2017

(From Original Conviction and Sentence in Criminal Case No: 766 of 2013 of the Chief Magistrate’s Court at Gatundu)

GEORGE MWAURA KINYITA.................APPELLANT

-V E R S U S-

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

J U D G M E N T

1. This is judgment in Criminal Appeal No: 9 of 2017. The appellant, GEORGE MWAURA KINYITA was charged with the offence of Robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code.

The particulars thereof were that on the 13th day of July, 2013 at Gatei village in Gatundu South District within KiambuCounty, jointly with others not before court being armed with dangerous weapons namely Pangas robbed SAMUEL MWAURA KARIUKI Ksh. 70,000/= and immediately before the time of such robbery used actual violence to the said SAMUEL MWAURA KARIUKI.

2. He denied the offence and was tired and duly convicted of the offence and sentenced to a mandatory death sentence.

3. Being aggrieved and dissatisfied the appellant has decided to appeal against both the conviction and the sentence.

4. Through advocate Kaingati Kamonjo, he filed Four Grounds of appeal in his memorandum of appeal filed on 24th February, 2017. The grounds can be summarized as here below:

1. THAT, trial magistrate failed to consider all the witness statements.

2. THAT, trial magistrate failed to observe that evidence was contradictory.

3. The evidence did not prove the prosecution case beyond reasonable doubt.

4. The accused person should have, was not subjected to a proper identification parade.

5. SUBMISSIONS

The appellant through his Counsel submitted as follows:

1. On ground (a) the offence of robbery with violence is not brought out in the proceedings.

a) Only the complainant - PW2 was an eye witness, the other four did not witness.

b) PW2 - is however, not corroborated.

c) There was no proof that Ksh. 70,000/= existed and that it was stolen.

2. On grounds (b) & (c), PW2 said he was injured by another person who was with the appellant. This evidence is not corroborated either PW4 – a doctor the injuries were 10 days old and yet PW2 suffered injuries on 13th July, 2013 and went to the Hospital the same day. The Doctor pointed the injuries on the legs and hands which injuries were caused by tying of hands by a rope.

3. On grounds (e) – there was no identification parade to confirm the identity of the appellant. PW2 said he recognized the appellant because of his voice and walking style. He did not see his face as he was wearing dark clothes.

I submit that there was no proper identification parade to sort out the issue of identity of the appellant. The complainant relied on dock identity.

4. On ground (d), sentencing one to death the threshold must be very high. Perusal of the evidence does not disclose proper or clear analysis of the evidence adduced by the witness. This does not meet the minimum standard to sentence one to death.

5. Therefore, I urge the court to allow the appeal and set the appellant free.

6. The respondent through Madam Mutheu, opposed the appeal. She submitted as follows:

1. All the elements of robbery with violence, were proved. PW2 – testified that he was accosted by two people. There were threats of violence. He was assaulted by a person who was left guarding him. They were armed with both a Panga and/or a knife.

They then robbed him of Ksh. 70,000/=. Although it was at night, there was full moon. PW2 says there was also a Hurricane lamp in the shop.

2. Even they, the robbers were covered with masks,PW2 was able to see the walking style of the appellant. He was also able to hear his voice and recognized him as his relative.

Therefore, I submit that the voice recognition that was used was sufficient. PW2 was able to repeat some of the words that the appellant uttered the fact that the appellant was his uncle, neighbour all his life, means that he knew him well

3. Using his description of his uncle to the police is what led the police to arrest the appellant. Therefore, I submit as a consequence hereof, there was no need for identification parade.

4. PW4 – The Doctor was able to corroboration the injuries on the hands and legs. The Doctor gave his opinion that those injuries were caused by ropes. The fact P3 form was filled ten (10) days later, is not an issue. This is because the P3 form is filled once charges are preferred upon the instructions of the police.

5. On the issue that no other witnesses corroborated the robbery, I submit that Section 143 of Evidence Act is clear, that to prove one fact does not require a series of witnesses, one witness will survice to prove one fact in the issue.

6. On the issue of the case to answer being immediate, this is not unusual especially where its one magistrate hearing the case from the beginning as in this case and the witnesses were short as in this case, nothing is wrong with an immediate ruling on no case to answer, without prolonged consideration.

7. The judgment, had all the elements as laid out under Section 169 of Criminal Penal Code.

8. The issue of scene visit not having been made by the court, I submit that if the defence needed it, they would have asked it during the trial. They did not request for it. In fact, the investigating officer was able to describe the scene and what happened. Visiting the scene was therefore unnecessary.

9. In his defence, the appellant did not poke holes in the evidence of the prosecution, neither did the alibi of where he was. He only opted to talk about hand dispute bet him and the mother of the complainant. He however, brought no witnesses to testify on the said hand issue.

10. We therefore, pray that conviction and sentence be upheld.

7. FIRST APPEAL

This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.

8. ISSUES FOR DETERMINATION

1. Was the appellant duly recognized/identified as the person who along with another, robbed the complainant, SAMUEL MWAURA KARIUKI?

2. Was threats on violence meted out on the complainant?

3. Was anything robbed from the complainant?

9. TESTIMONIES: ANALYSIS

On 13/07/2013 at 9 o’clock at Gatei village, the complainant who had been selling in their family kiosk/shop, was accosted by two people as he prepared to close the shop. They demanded money with menace. They tied up the complainant, SAMUEL MWAURA KARIUKI outside, the appellant entered the kiosk but left one of his accomplice to stand guard on the complainant.

The accomplice continually inflicted injuries on the complainant with a Panga/knife, on the hands and legs. The appellant stole Ksh. 70,000/= in cash from a meter box in the kiosk. After which they both left. The complainant shouted for help and his grandfather PW3 arrived and untired him.

The complaint recognized the appellant by voice, that, voice recognition and style of walking as they entered the kiosk.

PW4– The Doctor confirmed and corroborated the injuries suffered by the complainant. He confirmed further that those injuries were caused by the ropes.

10. I am satisfied that all the elements of robbery with violence were proved beyond reasonable doubt. I agree with the respondent, Counsel, there were threats of violence and indeed the complainant was assaulted by the accomplice of the appellant. And that the complainant was robbed of Ksh. 70,000/=.

11. FINDINGS

For these reasons, this appeal is dismissed. This court upholds the conviction and sentence of the trial court herein.

Right of Appeal – 14 days.

JUDGMENT WRITTEN AND SIGNED BY:

C. B. NAGILLAH

JUDGE

JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY:

THIS 3rd DAY OF October 2017

JOEL NGUGI

JUDGE

In the Presence of:

…………………………...the Appellant

…………………………for Respondent

…………………….for Court Assistant