[2023] KEHC 26637 (KLR)

Gitonga & 2 others v Director of Public Prosecutions (Criminal Appeal E019 & E020 of 2023 (Consolidated)) [2023] KEHC 26637 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26637 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E019 & E020 of 2023 (Consolidated)

TW Cherere, J

December 14, 2023

Between

Samuel Gitonga

1st Appellant

Daniel Koome

2nd Appellant

Stephen Mureithi

3rd Appellant

and

Director of Public Prosecutions

Respondent

(Appeal against conviction and sentence in Tigania Criminal Case No. E454 of 2021 by Hon. A.G.Munene (PM) on 07th February, 2023)

Judgment

Background 1. Samuel Gitonga, Daniel Koome and Stephen Mureithi (1st, 2nd & 3rd Appellants respectively) were charged with robbery with violence contrary to Section 295 as read with section 296 (2) of the Penal Code (the Act) that was committed on 01st March, 2020 against one Christopher Kaburu who was not only robbed but wounded.

The prosecution’s case 2. Christopher Kaburu stated that he was walking home around 11. 50 pm when he saw 4 men whom he knew before that date and who were armed with long pangas locally known as C-line about 100 metres away. He stated that he did not know what happened to him for he found himself in hospital with serious injuries to his head and partial blindness for about a month and he realized that he had lost his phone, KES. 600/- and a pair of keys. Complainant’s mother went to the scene at midnight after she heard screams and neither knew nor was she informed by whom Complainant was injured.

3. In cross-examination by the 1st Appellant, the witness stated that he did not indicate if there was lighting at the scene of crime but had named him as one of the assailants. In cross-examination by 2nd and 3rd Appellants, the witness conceded that he did not name them when he first recorded his statement with the police.

4. As a result of the attack, complainant suffered depressed skull fracture and vision to his left eye was diminished. The P3 Form PEXH. 4 reveals that the injuries were assessed as grievous harm.

5. PW4, Ann Mwangi stated that on the material night at about midnight, he saw Appellants whom she knew before that date and who were armed with pangas walking towards a place called Milimani. That she subsequently met the complainant at a shop she had gone to buy cigarettes and left him there and proceeded to her house about 20 metres from the shop. That a short while later, she heard screams and ran towards the scene where with the assistance of security lights saw the 3 Appellants running away as complainant lay on the ground bleeding from the head.

6. On the same night, police who were on patrol arrested 1st Appellant who was armed with a c-line in company of the 2nd Appellant and escorted them to the police station. The investigating officer stated that the 3rd Appellant was arrested by members of public and was jointly charged with the 1st and 2nd Appellants.

7. 1st Appellant conceded he was known to the complainant but denied robbing him or attacking him. 2nd Appellant stated he was walking home when he was arrested and charged with robbing complainant which offence he denied committing. 3rd Appellant similarly denied the offence and stated he was arrested on 02nd March, 2020 long after the offence was committed.

8. The trial court after considering the evidence found the prosecution case proved, convicted and sentenced Appellants to suffer death.

The Appeal 9. The conviction and sentence provoked this appeal. In his petition of appeal and written submissions, Appellants mainly argue that the manner in which they were identified was doubtful. The state on the hand argues that its case was proved beyond reasonable doubt.

Analysis and Determination 10. As the first appellate court in the instant appeal, I am required and indeed duty bound to subject the evidence tendered in the lower court to thorough re-evaluation and analysis so as to reach my own conclusion as to the guilt or otherwise of the appellant. In doing so I must give allowance to the fact that I neither saw nor heard the witnesses as they testified and therefore cannot comment on their demeanour. (See Okeno v Republic [1972] E.A. 32).

11. I have considered the appeal in the light of the evidence on record, amended grounds of appeal and written submissions for the Appellants and the oral submission made on behalf of the prosecution and I have deduced the issues for determination as follows:1. Whether the offence of robbery with violence was proved 2. Whether Appellant’s culpability was proved

1. Whether the offence of robbery with violence was proved 12. The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of Oluoch v Republic [1985] KLR where it was held:“Robbery with violence is committed in any of the following circumstances:a.The offender is armed with any dangerous and offensive weapon or instrument; orb.The offender is in company with one or more person or persons; orc.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 ………”

13. The evidence by PW1 discloses that the robbery was committed by more than one person who not only robbed him but also wounded him using dangerous weapons. Consequently, the trial magistrate’s finding that the prosecution established that an offence of robbery with violence was committed was well founded.

2. Whether Appellants’ culpability was proved 14. It is trite that evidence of visual identification should always be approached with great care and caution (see Waithaka Chege v R {1979} KLR 271). Greater care should be exercised where the conditions for favourable identification are poor. (Gikonyo Karume & Another v R [1900] KLR 23). Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla bin Wendo & Another v R, {195} 20 EACA 166; Wamunga v R, {1989} KLR 42; and Maitanyi v R, 1986 KLR 198).

15. The Court of Appeal in the case of Joseph Muchangi Nyaga & another v Republic [2013] eKLR stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently.

16. The difference in approach between identification and recognition was expressed thus by Madan J.A in Anjononi and Others v The Republic [1980] KLR;“…………………This, however, was a case of recognition, not identification, of the assailants; 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 assailant in some form or other.”

17. That is not to suggest of course, that cases of misrecognition cannot occur (See Karanja & Anor v Republic [2004] KLR 140) and courts are still duty-bound to examine such evidence with great care.

18. Complainant explained that there was no lighting at the scene of crime and that he did not identify the persons that robbed him and this was confirmed by the entry of the first report in which he informed the police that he had been robbed by unknown people.

19. Although she did not see Appellants rob the Complainant, PW4 stated that he recognized Appellants who were armed running from the scene of crime at about midnight on the material date.

20. In this case, the prosecution did not lead evidence concerning the intensity of light, the location of the source of light in relation to Appellants and whether or not Appellants were running from or towards the witness and time taken by the witness to observe the Appellants considering that she stated that they were running.

21. Appellants have denied having been at the scene and so as to be able to identify him subsequently, I find that identification of any Appellants at night and in difficult circumstances was not water tight as to support a conviction.

22. Additionally, PW5’s evidence that he arrested 1st and 2nd Appellants running from the scene of crime was uncorroborated as his colleagues with whom they arrested Appellants were not called as witnesses. Consequently, Appellants’ defence that they were not arrested in the manner described by PW5 ought not to have raised a reasonable doubt in favour of Appellants.

23. PW6’s evidence concerning the manner in which the 3rd Appellant was arrested was hearsay and it ought not to have been used as a basis to found a conviction as did the trial court.

24. From the totality of the evidence, Appellants were entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him …….” (See Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR).

25. Accordingly, and for the reasons set out hereinabove, I find that the prosecution did not prove its case against the Appellant beyond any reasonable doubt. The conviction and sentence were against the weight of evidence. This appeal succeeds. The conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is ordered that the Appellant be set at liberty.

DELIVERED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/Munene1st Appellant - Present in person2nd Appellant - Present in person3rd Appellant - Present in personFor the State - Ms. Rita Rotich (PC 1)