[2015] KECA 418 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A.)

CRIMINAL APPEAL NO. 37 OF 2013

BETWEEN

HAMISI MUNGALE BUREHE……………APPELLANT

AND

REPUBLIC ………………………………RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Mombasa (Odero & Muya, JJ.) dated 20th December, 2013

in

H.C.Cr.A. No.47 of 2013)

**************

JUDGMENT OF THE COURT

To the police, the appellant was reputed to be a serial and hard-core criminal who in the company of others raided and terrorized homes in both Nzombo and Lunga Lunga areas of Kwale County and committed all manner of criminal acts. For instance, on the nights of 28th and 29th September, 2006, 17th October, 2006, 16th November, 2006, 10th January, 2007, 10th and 11th February, 2007, 20th, 21st May, 2007, 6th June, 2007 and 12th June, 2007, he is alleged to have committed the following offences: breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code; handling stolen goods contrary to Section 322(2) of the Penal Code; grievous harm contrary to Section 234 of the Penal Code; attempted murder contrary to Section 220(1) of the Penal Code; assault causing actual bodily harm contrary to Section 251 of the Penal Code; breaking into a building and committing a felony contrary to Section 306(1) of the Penal Code; again, breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code; robbery with violence contrary to Section 296(2) of the Penal Code; and attempted robbery with violence contrary to Section 297(2) of the Penal Code. Because he was well known and had been recognized by some of his victims, his name was soon passed to the local administration who with the assistance of the police officers from Mamba Police Post tracked him down and arrested him on 27th July, 2007.

On 6th August, 2007, he was arraigned before the Principal Magistrate’s Court at Kwale to answer to those charges. He pleaded not guilty to all of them and his trial commenced in earnest. At the conclusion thereof, the appellant was found guilty on six counts; robbery with violence and attempted robbery with violence for which he was sentenced to death; attempted murder and causing grievous harm each of which attracted 15 years imprisonment, breaking into a building and committing a felony and assault causing actual bodily harm for which he was sentenced to 5 years imprisonment respectively. The prison terms were ordered to run concurrently. However, the learned magistrate did not explain how these sentences would be executed in view of the death sentence. The norm and practice is that where an accused person is convicted and sentenced on both capital and non-capital offences, the latter sentences are supposed to be held in abeyance pending the execution of the capital sentence.

Aggrieved by the conviction and sentence, the appellant preferred an appeal to the High Court. That appeal was heard by Odero and Muya, JJ. who by a judgment dated 20th December, 2013 allowed it partially. They found the charge of grievous harm defective on account of duplicity and the one of breaking into a building and committing a felony therein not proved beyond reasonable doubt. They quashed both convictions and set aside the sentences. However, the appeal with regard to the remaining four counts was found to have no merit and accordingly dismissed. The High Court then went on to correct the manner in which the sentences alluded to above would be carried out by holding in abeyance the execution of the other sentences pending the carrying out of the death sentence.

Undeterred, the appellant has now come to this Court by way of a second and perhaps last appeal faulting the High Court for not appreciating that there was misjoinder of offences, the evidence of identification by recognition was unsatisfactory, vital witnesses were not called to testify and, finally that his defence was not given due consideration.

At the hearing of the appeal, Mr. Obaga, learned counsel for the appellant argued only two grounds; misjoinder of offences and identification. On the first ground, counsel submitted that the appellant was embarrassed in his defence when he was confronted with eight (8) counts some of which were quite unrelated, one of which even attracted a death penalty; that the joinder of the offences as aforesaid offended Section 135(3) of the Criminal Procedure Code; that it is trite that an accused charged with a capital offence need not be charged with non-capital offences; that the appellant was not represented by counsel; and, that being the case, the appellant did not get a fair trial, which right cannot be limited. On that basis, counsel urged us to order a re-hearing of the appeal in accordance with Rule 31 of this Court’s Rules.

On identification, counsel limited his submissions to the count of robbery with violence. He submitted that the identification was not free from possibility of error; that the complainants never identified the appellant neither did they make a first report to the authorities or gave a description of the appellant. Regarding the shoe that was found in the complainants’ house, counsel maintained that there were no special features showing that the shoe belonged to the appellant.

Responding, Mr. Monda, learned Assistant Director of Public Prosecutions submitted, the appellant was not in any way prejudiced or embarrassed by the misjoinder of the offences. If anything, it facilitated expeditious disposal of the case. Accordingly, the trial was fair in terms of Article 50 of the Constitution. Further, Section 135 of the Criminal Procedure Code was complied with fully. On identification, counsel submitted that the evidence was one of recognition as opposed to visual identification. This was accompanied by voice recognition as well. The conditions obtaining were favourable for positive recognition. In any event, counsel submitted, there were concurrent findings by the two courts below on recognition of the appellant which this Court should be slow to disturb.

A second appeal to this Court is solely confined to points of law. The law is clear that where a right of appeal is confined to questions of law, an appellate court has loyalty to accept findings of fact of the lower courts and should resist the temptation to treat findings of fact as holdings of law or mixed law and fact and further that the court should not interfere with the findings of fact by the trial or first appellate courts unless on the evidence no reasonable tribunal could have made such findings. (See M’Riungu v Republic [1983] KLR 455).

The appellant has isolated the issues of law in this appeal as misjoinder of the offences and his identification nay, recognition. We agree that these are really issues of law that we have jurisdiction to deal with.

Section 135(1) of the Criminal Procedure Code provides inter alia:-

“Any offences, whether felonies or misdemeanors may be charged together in the same charge or information, if the offence charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”

What this provision is saying in general terms is that any number of offences may be charged together in the same charge sheet provided they are founded on the same facts or form or are part of a series of offences of the same or similar character. Do the eight counts preferred against the appellant that we have set out at the beginning of this judgment, meet this threshold? We do not think so. The first count of robbery with violence was committed on 6th January, 2007 at 1. 15 a.m. and had no connection whatsoever with attempted murder that was committed on 16th November, 2006, nor was it connected in any way with breaking into a building and committing a felony therein on the night of 10th and 11th February, 2007. Neither were the offences founded on the same facts nor did they arise in the cause of the same transaction. They did not, save for perhaps breaking into a building and committing a felony, form part of a series of offences of the same or similar character. They are totally different in time and scope and in the manner they were committed. This called for each one to be a subject of a separate charge. Therefore this was a clear case of misjoinder of counts.

Under Section 135(3) of the Criminal Procedure Code, the trial court could either before trial or at any stage of the trial direct separate trials for any one or more offences charged if it was of the opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or if for any other reason it is desirable to direct that the person be tried separately. The remedy appears to be that the trial court has to be satisfied suo moto that the appellant will be embarrassed in his defence by reason of being charged with several unrelated counts in one charge sheet, in which event it may order separate trials. The decision to have joint or separate trials would appear therefore to rest solely at the discretion of the trial court. It does appear to us though that the trial court did not exercise this discretion in favour of the appellant. However, an appellate court is averse to intervening or questioning the exercise of the discretion by the trial courts unless the exercise of such discretion was abused. That is not the message that we are getting here. Can we on our part determine that the appellant was thereby embarrassed or prejudiced in his defence by the misjoinder?

Looking at the proceedings in the trial court and despite the numerous charges, we cannot detect any embarrassment encountered by the appellant. In other words, the embarrassment of the appellant in his defence by numerous unrelated counts is not self-evident. He asked for and was granted all the witness statements in advance. He subjected all the witnesses called by the prosecution in respect to each count to intense and vigorous cross examination and even had PW1 recalled for further cross –examination and when it came to defending himself, he demanded and was given a typed record of the proceedings up to that stage. He thereafter mounted a robust defence. Indeed, at no time did the appellant alert the court that he was finding it difficult to defend himself in the face of the numerous counts. He was happy to go along. Incidentally, he did not even raise the issue in the High Court on first appeal.

This Court in the case of Dusara v Republic [1981] 139 once held:

“…..the decision to have joint or separate trials is within the discretion of the court, considerations when exercising this discretion are undesirability of duplicating proceedings, extra expenses and inconvenience, unless this will cause prejudice……….”

See also Criminal Appeal No. 360 of 2012 Evans Kalo Callos v Republic [2014] eKLR. We still think that this is good law. This seem to accord well with submissions of Mr. Monda that such joinder facilitates expeditious disposal of cases. However, we must hasten to add that this is not a carte blanche’ for those charged with drawing charge sheets not to comply strictly with rules governing the drafting of charge sheets. The general rule is that, for every distinct offence with which an accused is charged, there must be a count in a separate charge sheet and every distinct offence must be tried separately. Of course to this general rule, there are exceptions outlined as we have already stated in Section 135(1) of the Criminal Procedure Code. We nonetheless reiterate that, despite the fact that the exceptions permit the joinder of several offences in the same charge sheet, the court may in its absolute discretion order separate charge sheets and trial for the offences. The court may do this where the interest of justice so demands, such as where the accused may be prejudiced or embarrassed in his defence by a trial of all the alleged offences in one charge sheet. In conclusion with regard to this ground of the appeal, we must say that rules of drafting charges are extremely important in criminal trials and must be adhered to strictly since they engender clarity and accuracy in the accused and his counsel’s understanding of the charge brought by the State or prosecuting authority. It would also help the accused and his counsel to focus sufficiently on his defence. These rules, if strictly followed, enforced and jealously guarded, would not only ensure that justice is done, but will be seen to be manifestly done. It will forestall the complaints such as the one that has been ventilated so robustly by the appellant before us. We may also add that Section 135(1) (supra) is permissive. It is not worded in mandatory terms

We may as well at this juncture, address the submission by the appellant that once an accused is charged with a capital offence, he cannot be charged with any other offence. We are not aware of such legal requirement. What we are aware of is that an accused can face both capital and non-capital offences in the same charge sheet or information if they arose from the same transaction. The trial court may then decide to entertain the capital charges and hold the other charges in abeyance. Alternatively, it may hear all the counts and if it convicts on both capital and non-capital, it will order that the sentence in respect of non-capital offences be held in abeyance pending the execution of the capital sentence. Since we have come to the conclusion that though there was misjoinder of the offences, the appellant did not suffer any embarrassment in his defence, accordingly, this ground of appeal fails.

On identification of the appellant, we bear in mind the law on identification and particularly on visual identification and what is required before a court can safely act on such evidence. The court must test with full care and caution such evidence, particularly when the circumstances under which such identification came to be made were difficult. Again, the law is clear on what aspects of such evidence would answer to the court having tested it with greatest care. This Court, in the case of Kariuki Njiru & 7 Others v Republic; Criminal Appeal No. 6 of 2001 (UR) stated:-

“……The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if the Court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered(see R. v Turnbull [1976] 63; Criminal Appeal R. 132).Among the factors the Court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all……”

However, the conviction of the appellant did not only hinge on his visual identification by some of the victims but also on his recognition. Again, the law on identification by way of recognition is equally settled. The time tested holding in the case of Anjononi v R [1980] KLR 59 is apt. It was in these terms:-

“……This was, however, 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…..”

With regard to the robbery with violence count, the evidence of the appellant’s recognition was given by the complainant, Chiboya Chaka Chakaya, (PW1) and his wife, Kadzo Mwanzala (PW2). According to their evidence, they were asleep in their house at about 1 a.m. on 6th June, 2007 when the appellant in the company of one, Ndoro Charo forced their way into their house and attacked them withpangas as they asked “iko wapi kamtu”, meaning “where is this small person.” The appellant is then said to have raised his leg to kick PW1 but instead the shoe came off and he lost balance. PW1 found space and ran outside. They pursued him outside but he outwitted them. It was then that they came back and descended on PW2 who they dragged outside and gang raped. Done, they left with a mountain bike, 2 trousers, 2 t-shirts and 3 children dresses. PW1 and PW2 were nonetheless able to identify the appellant, a neighbour from his voice which they were familiar with as he ordered them around the house. They were also able to visually recognize him courtesy of the light from their torches that they kept flashing all over in the house and through the moonlight as they pursued PW1 and as they gang raped PW2.

From the evidence on record, it does appear that the appellant and his accomplice were not disguised at all as to make it difficult to be recognized by a neighbour(s). The incident also took a while to accomplish which gave ample opportunity for the two witnesses to recognize the appellant. The incident too took place in a one roomed house and as correctly observed by the High Court “…..it would be easy to identify another person from light from torches as the light would be confined in a small area hence its intensity would be invariably higher…”. Further the witnesses were in close proximity with the appellant and more particularly PW2 as she was being gang raped. It is also instructive that these very witnesses gave the name of the appellant to the police officers at Lunga Lunga Police Station, contrary to the submissions by the appellants that no such report was made. Finally, it was not lost to both courts below, that the appellant was not only a neighbour but a former classmate of PW1 at Mamba Primary School. In their past, they had undertaken walks together and talked over all manner of things. That was the basis of his familiarity with the appellant’s voce. Further, it was also not lost on them that as he tried to kick PW1 so as to retrieve the panga that PW1 had, one of the appellant’s shoes came off which he left behind as he hurried out after committing the offence. Both witnesses confirmed that the shoe belonged to the appellant as they had been seeing him in it daily. In his defence, he did not deny that the shoe was his. Rather, he claimed that the investigating officer of the case in a bid to frame him in the case took his shoe which he tendered in evidence as an exhibit. It is obvious that this line of defence was an afterthought as correctly found by the two courts below. There was no reason or basis for the investigating officer to frame the appellant in the case. In the light of the foregoing, the turn around by the appellant and claim that the shoe had no special features to associate it with him is a long shot. Finally, the two courts below concurrently found that the appellant was positively recognized at the scene of crime by PW1 and PW2 on the strength of the light emitted by torches in the house, the moonlight and his voice which they were familiar with. We have no reason to depart from these concurrent findings. Although we would have been contended to limit the issue of identification only to this count, because it is only this count that the appellant submitted on in that regard, shall find it necessary to consider it with respect to the other counts. After all he was convicted on them on that basis as well.

With regard to the count touching on attempted robbery with violence, the only identifying witness was the complainant, Juma Nasoro Dzunga (PW3). His evidence was that on 12th June, 2007 at about 10 p.m. he was on his way home having closed his posho mill business when he was confronted by three people who flashed torches at him and ordered him to sit down. He fought back and eventually overpowered them. Two of them escaped and he was left with the appellant. It was then that the appellant pleaded with his accomplices thus “Ndoro mulika torch huyu” meaning “Ndoro direct the torch light on this one”. His accomplices then responded “kuna nini wewe Hamisi” meaning “what is wrong with you Hamisi.” When the torch was flashed, PW3 saw the face of the appellant sufficiently to be able subsequently to identify him. On reporting the incident at Lunga Lunga Police Station, he gave out the appellant’s name. Subsequently, when called to the Police Identification Parade, he easily picked him out. This was a case of visual identification. PW3 was in close combat with the appellant as he engaged him in a scuffle. At his request, his accomplices flashed their torches at him. He was not at all disguised. Again the encounter took a while. Besides the torch light, there was also bright moonlight. Taking all these into account, we doubt whether the appellant would have been a victim of mistaken identity. Again the two court below came to the concurrent findings that the appellant’s name was given away to PW3 by his accomplices; that PW3 passed the name to the police; that he was subsequently identified on the police identification parade; and finally, that he was positively identified through the torch light that his accomplices flashed at him. We have no reason to depart from these concurrent findings.

With regard to the 3rd count of attempted murder, there can be no doubt regarding the appellant’s identification by way of recognition. On 16th November, 2006 at about 3. 30 p.m., the appellant confronted his elder brother, Dzuya Manale Burehe (PW4) who was in the company of Muzungu Ruwa (PW11) and other family members. He demanded to know why PW4 had reported him at Mamba Police Post as a thief and that should his answer not be satisfactory he would kill him. With no answer forthcoming, the appellant retreated a few steps, uttered a few words and let fly towards PW4 a Somali sword. However, PW4 blocked it with his hands and he was injured. The appellant then took out a knife and stabbed him on the chest. PW4 pulled the knife from his chest, picked a kitchen knife and cut the appellant three times before he fled. PW4 then reported the incident to Mamba Police Post and was subsequently treated at Msambweni District Hospital. There is no doubt at all that the incident occurred in broad day light and involved siblings. Besides PW4, there was also PW11 who duly corroborated the evidence of PW4 in material aspects. The appellant advanced the defence of there being a land dispute between PW4 and himself which did not carry any favour with the courts aforesaid and rightly so in our view.

Concurrently, the two courts found that the offence having been committed in broad day light, involving siblings, and having been witnessed by PW11, the possibility of the appellant being mistaken for someone else was remote, if not non-existent. They also discounted the appellant’s defence. We endorse those findings.

Lastly with regard to the offence of assault causing actual harm, the appellant is alleged to have attacked yet another neighbour, Mumba Bati (PW9) on 10th January, 2007, at about 9 p.m. PW9 had just alighted from a motor vehicle and was walking home along Lunga Lunga Road when he was accosted by three men who hit him on the shoulder, right hand and back. He fell down screaming but nonetheless managed to escape. The following day, he reported the incident at Lunga Lunga Police station and thereafter proceeded to Msambweni District Hospital for treatment. According to PW9 among those who attacked him was the appellant whom he knew very well. He saw him and recognized him courtesy of the bright moonlight and also his voice as he ordered him to sit down. He knew his voice very well as he was from the same village. He denied ever finding the appellant in the company of his niece or threatening him as a result or taking traditional brew (mnazi) with the appellant.

PW9’s evidence was corroborated by that of Ali Mangale Gamba (PW10). They had alighted together with PW9 and gone separate ways. Shortly thereafter, he heard PW9 scream and rushed to assist him only to find him injured. He told him that he had been attacked by three people one of whom was the appellant, whom the witness knew as well. As it is apparent, this was again a case of recognition as opposed to visual identification given that the appellant was a neighbour of PW9, the incident occurred in an open area under a bright moon and the appellant was in close proximity with PW9 as he ordered him to sit down. We are thus satisfied just like were the two courts below that these circumstances were favourable for positive recognition of the appellant. We need not interfere with those finding.

The upshot is that this appeal lacks merit and is accordingly dismissed in its entirety.

Dated and delivered at Malindi this 30th day of September, 2015

ASIKE-MAKHANDIA

……………………….

JUDGE OF APPEAL

W. OUKO

……………………….

JUDGE OF APPEAL

K. M’INOTI

……………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR