[2013] KEHC 2932 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 33 OF 2011

HILLARY KEMBOI SAUREI ...................................................... APPELLANT

VERSUS

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

JUDGMENT

The Appellant, HILLARY KEMBOI SAUREI, was convicted for the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. He was then sentence to suffer death as by law prescribed.

In the appeal to the High Court, he raised five (5) issues, which can be para-phrased as follows:

1. The prosecution did not prove the case beyond any reasonable doubt.

2. The trial court disregarded or failed to consider some material evidence which was tendered before it, and therefore arrived at a wrong decision.

3. The trial court failed to take account of the inconsistencies and contradictions in the prosecution case.

4. The alleged identification of the appellant, at the scene of crime, was not water-tight.

5. The learned trial magistrate erred in law, by failing to extend the benefit of doubt to the appellant.

When canvassing the appeal, Mr. Mukabale, the learned advocate for the Appellant put together grounds 1 and 2; and thereafter, he argued grounds 3, 4 and 5 together.

It was his submission that the evidence adduced had doubts in itself, therefore the same could not sustain conviction for capital robbery.

In that regard, this court's attention was first drawn to the charge sheet, which the appellant believes to be incapable of sustaining a charge of capital robbery.

It was the appellant's submission that the robbery and the violence did not occur simultaneously, and that therefore, the offence of capital robbery was not proved.

In any event, the victim's report was that he was assaulted and that Kshs. 300/= was taken from him. Therefore, as far as the appellant was concerned the words “assault” and “taking away of money”, did not insinuate the use of any force.

The Appellant also pointed out that because the incident was reported on 10th April, 2008, whilst it is said to have taken place on 8th April, 2008, the evidence tendered contradicted the charge sheet. The alleged contradiction was said to give rise to doubt in the prosecution case, as the prosecution failed to prove that the offence was committed on 8th April, 2008.

It was the Appellant's further contention that the only way that the prosecution could have proved that a knife was used was by producing the knife as an exhibit.

As the knife was not produced, and because the money which was allegedly stolen was also not produced, the Appellant submitted that prosecution failed to make available material evidence.

The torn trousers which the prosecution exhibited before the trial court was said to fall short of sustaining conviction for capital robbery.

As regards contradictions, inconsistencies and the lack of positive identification, the appellant pointed out that;

(a) The complainant said that he was injured on his right hand, but the doctor who examined him said that the injury was on the complainant's left elbow.

(b) The complainant was with PW.2. One identified the appellant by his voice, presumably because it was dark. But the other witness allegedly identified the appellant by his facial appearance.

In those circumstances, the appellant believes that an Identification Parade should have been organized, to verify whether or not PW.1 and PW.2 had positively identified him.

(c) PW.2 said that the appellant's home was about 500 metres from the scene of crime.

As far as the appellant was concerned, it was not possible for him to cover that distance over the period of 10 minutes, which PW.2 said it took him (the appellant) to reach home, get a knife and return to the scene.

It was the submission of the appellant that 500 metres was such a long distance that it cannot be covered within 10 minutes, in a return journey.

For those reasons, the appellant invited this court to allow the appeal.

In answer to the appeal, Mr. Mulati, learned state counsel, submitted that because the appellant assaulted the complainant immediately after the time of the robbery, the offence of capital robbery was proved.

Secondly, just because the incident was reported to the police on 10th April, 2008, the respondent submitted that that did not imply that the incident took place on that same date.

The failure to exhibit the knife which was used to assault the complainant, and the money which was stolen from the said complainant, was attributed to the fact that the appellant was arrested two (2) days after the incident.

It was the view of the respondent that the absence of the two items, as exhibits before the trial court, did not weaken the prosecution case.

On the question of the alleged contradiction on inconsistency about the complainant's hand which was injured, the respondent pointed out that the complainant actually told the trial court that he was injured on his left hand; so his evidence was consistent with the doctor's findings.

The respondent also submitted that the appellant was positively identified during the 30 minutes that the incident lasted. His identification was said to have been one of recognition.

Finally, the respondent submitted that the distance of 500 metres was not too far, to be covered to and fro, within 10 minutes.

In reply to the submissions of the respondent, the appellant's lawyer, Mr. Mukabale, submitted that the respondent did not sufficiently explain the absence of the knife and the money. In any event, the absence of such material evidence was said to be a blow to the prosecution case.

As far as the appellant was concerned, the Investigating Officer did not testify that the knife and the money were not recovered.

Finally, the appellant reiterated that the complainant and the doctor who examined him, gave contradictory evidence.

We have given due consideration to all the submissions canvassed before us. We have also re-evaluated all the evidence tendered before the trial court, and have drawn our own conclusions therefrom. In drawing our own conclusions, we have borne in mind the fact that, unlike the trial court, we did not have the benefit of observing the witnesses when they testified.

PW.1 is the complainant. He testified that on 8th April, 2008, at about 9. 00 p.m., he was walking home, when he saw the appellant arguing with PW.2.

Both PW.1 and PW.2 testified that they were together when they encountered the appellant. They had come from their place of work, where they operate power saws, that are used in cutting trees.

PW.1 told the appellant and PW.2 to stop arguing. At that point, the appellant turned to PW.1 and held him by the shirt.

This time, it was PW.2 who told the appellant to leave PW.1. The appellant left PW.1 and PW.2, and went towards his house.

PW.1 testified that the appellant came back after a short while. He was running.

PW.2 also testified that the appellant ran to his house.

In the light of the testimony of both PW.1 and PW.2, that the appellant ran to and from his house, we find that there was no merit in the appellant's contention that he could not have covered that long distance within 10 minutes, as asserted by PW.2.

Both PW.1 and PW.2 identified the trousers which the complainant had been wearing on the material day. PW.2 said that the trousers had not been torn by the time they encountered the appellant. And PW.1 testified that it was the appellant who cut the trousers which he (PW.1) was wearing.

According to PW.1, the appellant took his Kshs. 300/= after cutting him and also after cutting his trousers.

PW.2 also testified that the appellant took PW.1's money.

In our considered opinion the incident in which PW.1 was cut with a knife and then robbed, was one continuous chain of events.

But was the complainant injured on his left hand or on his right hand?

Although the appellant submitted that PW.1 only talked of his right hand being cut, the record of proceedings clearly shows the complainant as saying;

“He cut my left hand.”

Therefore, when the doctor testified that the complainant had injuries to his left elbow, that evidence was neither contradictory nor inconsistent with the evidence of the complainant.

PW.3 is a police officer attached to the Tarakwa Police Station at the material time. He told the trial court that PW.1 reported the incident at that police station on 10th April, 2008. However, PW.3 did not testify that the report was made on the same date when the incident took place. In fact, PW.3 made it clear that before PW.1 reported at the Tarakwa Police Station, he had already reported the incident at a Police Post.

The evidence of the police officer was corroborative of the complainant's evidence. We so find because this is what the complainant said in his testimony;

“The accused held me and cut the trouser I was wearing. He then took Kshs. 300/= which I had in my wallet. I went home and then went for treatment in private hospital at Kesses.

I was referred to Moi Teaching and Referral Hospital for treatment. I was treated there and was admitted for one day.

Afterward I reported the matter at Kesses Police Post. I also wrote my statement at Tarakwa Police Station”

In effect, after PW.1 was assaulted and robbed on the night of 8th April, 2008, he went home. Thereafter, he went to a private hospital in Kesses, where he received treatment.

He was referred to the Moi Teaching & Referral Hospital. At that hospital, the complainant was admitted for one day.

In our considered opinion, the sequence of events clearly demonstrates that whereas the incident occurred on 8th April, 2013, he only made a report at Tarakwa Police Station on 10th April, 2008.

The complainant, together with PW.2 both knew the appellant even before the incident. They even knew the appellant's home.

PW.2 saw the appellant and recognized him. The appellant accused him of taking away his girlfriend, Chepkoech.

The appellant cannot have been alleging that PW.2 had stolen his girlfriend if he (the appellant) had not recognized the person he was talking to.

In the same vein, when PW.2 said that he recognized the appellant, because it was not very dark, we find that evidence plausible.

And because both PW.1 and PW.2 knew the appellant from a period that was earlier than when the incident took place, it would have served no useful purpose to conduct an Identification Parade. Such parades only have evidential value when the suspect was unknown to the identifying witness prior to the incident in question.

We also find that the word “assault” connotes the use of force, contrary to the appellant's contention. In any event, the complainant clearly described the nature of the assault visited on both his person and his trousers. The said assault demonstrates the use of actual violence, resulting in injuries to PW.1 and damage to his clothing.

As regards the failure to exhibit the knife and the money, we find that there is no legal requirement that the prosecution must produce either the weapon used during a robbery, or the proceeds of the robbery, before a conviction can sustained.

There are many instances when the weapon may not be recovered. There are also many instances when the property which is stolen from a complainant may not be recovered. The failure to recover either the weapon or the stolen property cannot, of themselves, weaken the prosecution case provided all other ingredients had been duly proved against the accused.

In this case, PW.1 testified that his money was not recovered after the appellant took it away.

The Investigating Officer testified that both the knife and the money were not recovered. In those circumstances, those two items could not have been essential or material evidence, as they were never recovered.

In conclusion, we find that the case against the appellant was proved beyond any reasonable doubt. We find no merit in the appeal. We therefore dismiss the appeal. We uphold both the conviction and the sentence.

DATED and DELIVERED in open court this 6th day of June, 2013.

HON. JUSTICE FRED A. OCHIENG

JUDGE

HON. LADY JUSTICE G. W. NGENYE - MACHARIA

JUDGE

In the presence of:

…......................................................................................... for the Appellant

........................................................................................... for the State/Respondent