[2013] KEHC 6792 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 456 OF 2008

HASSAN MOHAMED ABDI………………........................APPELLANT

VERSUS

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

(FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NUMBER 977 OF 2007 IN THE CHIEF MAGISTRATE’S COURT AT MAKADARA – E. OMINDE (PM) ON 31/3/2009)

JUDGMENT

This is an appeal against conviction and sentence by Ms. E. Ominde, Principal Magistrate (as she then was) in Cr. Case no. 456 of 2007, in which the appellant was convicted on one count of robbery with violence contrary to Section 296 (2) of the Penal Codeand acquitted on two other similar charges.

Upon conviction the appellant was sentenced to suffer death in the manner prescribed by law, whereupon he filed an appeal based on five grounds in which he contended that the evidence of identification was insufficient as it came from a single witness. He also averred that there was no recognition by voice, that the charges were defective, and that his constitutional rights were violated.

In the count wherein he was convicted, it had been alleged that on 16th day of February 2007, at Huruma Estate within Nairobi area, jointly with others not before the court, while armed with dangerous or offensive weapon namely a pistol, they robbed Lao Kono Koro of a mobile phone make Nokia 66101 valued at Kshs.10,075/=, two Golden chains both valued at Kshs.3500/= and cash Kshs.350/= all valued at Kshs.14,925/=, and that at the time of such robbery they used personal violence against the said Lao Kono Koro.

Learned state counsel Miss Njuguna, opposing the appeal on behalf of the respondent, urged that the appellant was known to PW1 before the attack, and had been properly recognized by voice, and that there was sufficient light from a nearby church during the attack. Miss Njuguna further averred that it was true that conviction was based on the evidence of a single witness since the appellant had known the appellant for two years, and that there was no record to show that the appellant’s constitutional rights were violated.

This being the first appeal, we re-considered and re-evaluated the evidence adduced by witnesses to arrive at our own independent decision whether or not to uphold the conviction of the appellant. In drawing our own conclusion we were cognisant of the fact that we neither saw nor heard the witnesses as they testified. -see Njoroge vs. Republic [1987] KL 99, to which we were referred by Ms. Rashid, learned counsel for the appellant.

After a careful re-evaluation of the evidence on record we are of the humble view that this appeal must succeed on the ground of identification. It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially when it is shown that conditions favouring identification were difficult. Further, the Court has to bear in mind that it is possible for a witness to be honest but to be mistaken. - See the decision of the Court of Appeal in Ogeto v Republic [2004] 2KLR pg. 14.

The reasons why this appeal must succeed are set out below. First, we note that the offence is said to have occurred at 7. 30 p.m. Although there was light from a nearby church streaming towards the scene as stated in the complainant’s testimony and noted in the trial magistrate’s judgment, it was the testimony of the complainant that the person who called him was hiding in the shadow of a building, and that when the complainant moved nearer the person pulled him into the darkness.

Second, the complainant was not present when the appellant was arrested, and those who made the arrest did not come to court to testify and explain how they came to connect the appellant to the offence. The evidence of recognition was itself suspect since the complainant stated in his examination in chief that he had known the appellant for one year, only to change his testimony on cross-examination, and extend the period of acquaintance to two years.

If however, we were to draw an inference as invited by Miss Njuguna to do, and which inference we decline to draw, a basis must be laid for the evidence of voice recognition to form the basis of identification. As was held by Kneller, Hancox JJA & Chesoni Ag JA in Mbelle v Republic [1984] KLR pg 627, in dealing with evidence of identification by voice, the court should ensure that the voice was that of the accused, the witness was familiar with the voice and recognized it, and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to what was said and who had said it.

The record does not reflect that PW1 recognised the appellant by voice. From the evidence in chief the complainant used to see the appellant in that area but did not know what he did for a living. It cannot be assumed therefore, that they were in the habit of speaking to each other, to the extent of recognising each other’s voices in the dark. In Okethi Okale v Republic (1965) E.A. to which we were referred by Miss Rashid, the court of Appeal had this to say:

“in every criminal trial a conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadvisable for a trial judge to put forward a theory not canvassed in evidence or in counsels’ speeches.”

On the ground of the violation of the appellant’s constitutional rights by the failure of the court to supply him with witness statements and the charge sheet as requested, the record does not bear the appellant out. No request was made for the statements and none was therefore denied.

We therefore find that this conviction is unsafe for the reasons given above and consequently cannot be allowed to stand. We therefore allow the appeal, quash the conviction, and set aside the sentence. We order that the appellant be set at liberty forthwith, unless he is otherwise lawfully held.

SIGNED DATEDandDELIVEREDin open court this 7thday of November 2013.

MUMBI NGUGI L. A. ACHODE

JUDGEJUDGE