[2007] KECA 360 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 1155 OF 1995

(from original conviction and sentence of the Senior

Resident’s Magistrate’ s Court at Nairobi in Criminal Case

No. 429 of 1995)

GERALD MACHARIA GITHUKU ….…………. ……APPELLANT

VERSUS

REPUBLIC ……………………………..…………….. RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 1154 OF 1995

ALFRED MUCHIRI MACHARIA …………………… APPELLANT

VERSUS

REPUBLIC ………………………………………..….. RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 1153 OF 1995

JOHN WANJOHI NDEGWA ……………..………….. APPELLANT

VERSUS

REPUBLUC ………………………….……………….. RESPONDENT

J U D G M E N T

On 7th August 1995 in Chief Magistrate’s Court at

Nairobi the Appellants – JOHN WANJOHI NDEGWA, ALFRED

MUCHIRI MACHARIA AND GERALD MACHARIA GITHUKU

were convicted on the offence of robbery with violence contrary

to Section 296 2) of the Penal Code and were all sentenced to

death in the manner prescribed by law.

Being dissatisfied with the conviction and sentence they

simultaneously lodged Appeals to this Court to wit:-

- CR. APP. NO. 1153 OF 1995 BY

JOHN WANJOHI NDEGWA

- CR. APP. NO. 1154 OF 1995 BY

ALFRED MUCHIRI MACHARIA

- CR. APP. NO. 1 155 OF 1995 BY

GEALD MACHARIA GITHUKU

As the Appeals arose from the same Criminal Case below

and the original record to be used was one, the Appeals were

consolidated for purposes and ease of hearing. However before

the Appeal could come up for hearing JOHN WANJOHI

NDEGWA and ALFRED MUCHIRI MACHARIA passed on

whilst in prison custody and consequently their Appeals

abated. In the result we are only left to deal with GERALD

MACHARIA GITHUKU in this Appeal.

In his petition of Appeal, the Appellant listed 6 grounds

namely:-

1. That the Appellant was not

identified by the

Complainant as having

participated in the crime.

2. That the Learned Magistrate

erred in Law in convicting

the Appellant on conflicting

and contradictory evidence

of the Police Officers.

3. That the Learned Magistrate

erred in law in failing to

appreciate that the

Appellant was not charged

with being in possession of

the pistol and consequently

cannot be connected with

the offence.

4. That the Learned Magistrate

misdirected herself in Law

in failing to consider that

the evidence of finger prints

expert was not tendered –

that would have linked the

Appellant with the toy

pistol.

5. That in totality the evidence

adduced fell short of proving

the charge of robbery with

violence.

6. That the Learned trial

Magistrate erred in Law and

fact in not adequately

considering the Appellants

defence.

At the commencement of the hearing of the Appeal the

Appellant was with the leave of Court allowed to tender his

written submissions in support of the Appeal. We have heard

the benefit of reading the same and must say they were very

illuminating. We shall revert to them in detail in the course of

this Judgement. In his oral submissions, the Appellant

invited us particularly to consider the contradictions in the

evidence of PW3 and PW4. He submitted that at page 19 line

23 – 25 of the Learned Magistrate’s Judgment, PW3 stated

that he took the gun together with the exhibits from the

Complaint whereas PW4 in his testimony started that the gun

was found in his possession. It was his contention therefore

that such evidence should not be believed. He complained

that he was framed and urged this Court to consider his

written and oral submissions in totality and allow his Appeal.

The State was represented by Miss M.L. Okumu Learned

State Counsel. In her submissions, she supported both the

conviction and sentence. She referred us in detail to the

evidence of PW1, PW2 and PW3 and PW5 which basically was

that PW1 was carjacked and robbed at about 7. 30 P. M. PW2

and PW5 were Police Officers who saw the Complainant’s

Motor Vehicle being driven in a suspicious manner and

decided to chase it until it was involved in an accident. In the

meantime PW3 and PW4 having been alerted of the robbery by

the 999 Police system joined in the chase of the motor vehicle.

The Complainant’s vehicle was involved in an accident in the

course of the chase and the Appellant together with the

deceased Appellants came out of the vehicle and ran off in

different directions. The Appellant was chased and arrested

30 metres from the locus in quo. PW4 further testified that

there was sufficient street lights at the scene. That there were

no other persons at the scene and that a toy pistol was

recovered from the Appellant. During the chase of the

Appellant PW3 and PW4 never lost sight of him. It was her

further submissions that the Appellant was properly identified;

and that the ingredients of the offence were met. The

Appellant was with others when the offence was committed

and was armed with a toy pistol the time of the robbery. There

was common intent by the three to commit the offence. The

Learned State Counsel concluded by submitting that the

prosecution evidence was credible and watertight. The Appeal

should in the result be dismissed.

We propose to deal with the grounds of Appeal advanced

by the Appellant seriatim and draw our conclusions upon

evaluation of the evidence on record. We shall combine

grounds 1 and 2 of the Appeal as they all relate to the issue of

identification. It was the Appellant’s submissions that the

circumstances under which he was arrested did not rule out

the possibility of mistaken identity. Was the chase and

eventual arrest of the Appellant free from possibility of any

error or mistake? The Complainant in his testimony stated

that he was unable to identify any of the suspects from the

time he was carjacked and robbed to the point where his

motor vehicle was involved in an accident and the suspects

nabbed. Consequently, the only evidence of identification was

that given by the Police Officers who were involved in the

chase and subsequent arrest of the Appellant. He further

submitted that the chase occurred at night and visibility was

poor. Although the Police Officers admitted that the area was

illuminated by electric light nonetheless they were unable to

tell the nature of the said light, its source, location vis a vis

the fleeing Appellant. That all circumstances considered the

possibility that the Police Officers apprehended innocent

persons engrossed in their daily chores could not be ruled out.

In support of his contention that the possibility of mistaken

identity could not be ruled out the Appellant referred us to

what he claims to be contradictory testimony of PW3 and PW4

regarding the number of persons they saw running away from

the stalled motor vehicle – were they 2 or 3, and also whereas

PW3 claimed that they passed the culprits in their motor

vehicle for a while before they stopped and chased them on

foot for a while before their arrest, PW4 testified to the

contrary. He stated that they merely chased them on foot.

The Appellant therefore challenges the credibility of the

witnesses. He concluded his submissions by stating that he

was a victim of mistaken identity as his chase and eventual

arrest did not rule out a possibility of the real culprits having

escaped by mingling with other members of the public to

conceal their identity; more so when the valuables allegedly

stolen from the Complainant like money and the watch were

not recovered from any of the suspects.

It is common ground that the Complainant was car

jacked and robbed of valuables enumerated in the charge

sheet. It is also common ground that soon after the incident

the subject motor vehicle was spotted by PW2 and PW5 who

were Police Officers on patrol duties within industrial area

being driven suspiciously and they started to trail it. It is also

not denied that the Complainant’s Motor Vehicle was

subsequently involved in an accident when in an attempt to

shake off the patrol car of PW2 and PW5, the carjackers

overshot the round about linking Dakar road and Dar-essalaam

road. It is also not in dispute that once the subject

motor vehicle stalled after the accident some occupants came

out and ran in different directions leaving the complainant in

the motor vehicle injured. It is also common ground that all

the Appellant were arrested within the vicinity of the incident.

It is also common ground that the scene where the accident

occurred and the Appellants arrested was well lit. The street

was deserted save for the Appellants and the activities of PW2,

PW3, PW4 and PW5 leading to the arrest of the Appellant. On

arrest one of the Appellants was found in possession of the

jacket belonging to the Complainant together with valuables

whereas the other was found with a toy pistol. What is in

dispute is whether the three Appellants who were arrested

within the vicinity were the same people who car jacked the

Complainant. The Complainant’s evidence is of little help in

this regard for he admitted that he was unable to identify any

of the Appellants due to the manner in which he was handled

soon after the car jacking.

We are therefore left with the testimony of PW2, PW3 and

PW4 in so far as the identification of the Appellant is

concerned. PW2 and PW5 gave vivid account of how they

spotted the vehicle that had been commandeered by the

robbers, the ensuing chase which was very close up to the

time the subject motor vehicle crashed. They had been joined

in the chase by PW3 and PW4. It was the evidence of these

witnesses that at no single time did they loose sight of the

motor vehicle. And that when it crashed into the round about

three people came out and ran in different directions. They

were chased and arrested within the vicinity. As the

streetlights were on, the said witnesses confirmed that they

never lost sight of the people who had jumped out from the

motor vehicle and ran in different directions until they were

arrested. The Learned Magistrate formed the opinion that

these witnesses told the truth and did not waver at all under

intense cross-examination. Indeed their testimonies taken

together not only complemented each other but was also

consistent. It is important to note that in his defence the

Appellant did not deny that he was arrested in the vicinity of

the accident. All he says was that he was arrested at 10. 00 P.

M. whilst on his way home from duty. He had nothing to do

with the crime and that he was therefore framed. The Learned

Magistrate having observed the demeanor these witnesses

chose not to believe, and rightly so in our view, the Appellant’s

defence. The Appellant in his written submissions complained

that since their arrest occurred at night and visibility was poor

and even though the area was illuminated by street lights,

nonetheless the Learned Magistrate did not appreciate how

intense the street lights were, their location and position

relative to the fleeing fugitives. However, we do not think that

this Complainant has any merit. The testimony of the Police

Officers was cogent. When chasing the Appellant which was

for a very short distance they never lost sight of him. The

electric light illuminated on the Appellant through out. We are

satisfied on the evidence that the conditions prevailing were

favourable to the positive identification of the Appellant

bearing in mind that other than the Appellant and the other

co-accused there were no other people in vicinity.

We now turn to consider grounds 3 and 4 of the

Appellants jointly. In these grounds the Appellant complains

that the Learned Magistrate did not consider that the

Appellant had not been charged with being in possession of a

toy pistol. Consequently there was no nexus between him and

the offence of robbery with violence; and that the evidence of a

finger print expert that could have linked him with the toy

pistol was not tendered.

The evidence on record is that the Appellant was upon

arrest and search found in possession of the toy pistol. He

had been seen dashing from the stalled motor vehicle dangling

what appeared to be a pistol. The Appellant need not have

been charged with the alternative count involving the toy pistol

to connect him with the charge he was facing nor was finger

print expert evidence necessary in the circumstances. Indeed

nowhere in the entire evidence recorded does he deny

possession of the toy pistol. If it is established that what

appeared to be a pistol is indeed a toy pistol, is the evidence of

a finger print expert really necessary? We think that in the

circumstances of this case it was not. The nexus connecting

the Appellant to the offence is provided by the fact that he

came out of a stalled vehicle, attempted to run, was chased

and arrested. Upon arrest he was found in possession of the

toy pistol tacked in his waist. When taken with the testimony

of PW1 as to how he was car jacked – someone thrusting what

appeared to be a gun to his temple, the nexus is complete.

We now turn to consider ground 5 of the Appeal. The

complain here is that the totality of the evidence adduced fell

short of required standard of proof for the offence of robbery

with violence. We disagree. The prosecution led evidence

which showed that the Complainant was violently robbed of

his vehicle and valuables. A gun was used. That gun turned

out to be a toy gun. Three people were involved in the

transaction. A toy gun was subsequently found on the

Appellant. When arrested one of the co-accused had in his

possession valuables that had just been stolen from the

Complainant. All these circumstances taken into

consideration we are persuaded as the Learned State Counsel

submitted that the ingredients for the offence of robbery with

violence contrary to Section 296 (2) were met and we see no

merit in this ground.

In conclusion we deal with the ground of Appeal in which

the Appellant complains that the Learned Magistrate erred in

law and fact in not adequately considering the Appellant’s

defence. The Appellant gave unsworn statement in which he

detailed his movements on the material day. In a nutshell he

denied his involvement in the crime and offered an alibi. He

complains that the Learned Magistrate failed to address

herself adequately to the defence before rejecting it. The

Appellant referred us to Section 169 (1) of the Criminal

Procedure Code. Unfortunately the Section is of little help to

the Appellant. The Section deals with the contents of the

Judgment. Our perusal of the Judgment leaves us in no

doubt at all that the Learned Magistrate fully complied with

the requirements of the Section. We are also satisfied that

the Learned Magistrate in her well considered Judgment

reverted to the Defence put across by the Appellant and

rejected it. She was not persuaded by the Appellants story

that he was walking home when he was accosted by Police

officers and arrested. The Learned trial Magistrate discounted

the Appellant story that although where he was allegedly

working, transport was provided he opted not to use the same

but walk home on foot at 10. 000 p. m. This ground of Appeal

therefore fails.

In the result we find no fault by the Learned Magistrate

in the manner in which she conducted the proceedings. We

are satisfied that the evidence on record linking the Appellant

to the perpetration of the crime was watertight and

overwhelming.

Consequently we dismiss the Appeal.

Dated and delivered at Nairobi this …………… day of

………… 2004.

M. S. A. MAKHANDIA

Ag. JUDGE

L. K. KIMARU

Ag. JUDGE