[2013] KEHC 102 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL NO. 289 OF 2008

IAN KIRIMI MWITI …………….........…………...……… APPLICANT

VERSUS

REPUBLIC ………………………………………… RESPONDENT

(From original conviction and sentencing in Criminal Case No. 1566 of 2007 at the Chief Magistrate’s Court at Thika by L.W. Gicheha - Senior Resident Magistrate on 20th August 2008)

J U D G M E N T

The appellant was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal code. It was alleged in the particulars of the charge that on 16th March 2007 at Kiganjo estate Thika District within Central Province jointly with others not before the court, while armed with dangerous weapons namely pangas, knifes and empty bottles, they robbed John Kibathi Ngandu of a mobile phone make Nokia 1600 and cash Ksh. 1500/- all valued at Ksh. 5000/- and at the time of such robbery used actual violence to the said John Kibathi Ngandu.

The appellant denied the offence but after a full trial he was convicted and sentenced to death. This appeal arises out of the said conviction and sentence.

The complainant PW3 was on his way home together with his friend Moses Kimunya PW1 at about 7. 30 pm. They alighted from a motor vehicle at a place called Kiganjo when they saw four people approach from the front. They were attacked and the complainant is alleged to have been robbed of the items set out in the charge sheet while his friend Moses was stabbed at the back. Both PW1 Moses and PW3 the complainant said they were able to identify some of their assailants with the aid of moonlight and a passing motor vehicle which had lights on.

The complainant managed to run away and informed the sister of his friend who came to the scene and found her brother lying on the ground. He had been stabbed at the back. The said sister is PW4. When she reached where the brother was, the brother disclosed that he had been attacked by people he knew and named one of them as Mbaite. They reported the matter to the police station and took him to hospital. On the following day relying on the information by PW1, the appellant was arrested and subsequently charged with this offence. Nothing connected with the robbery was found in his possession.

In his defence the appellant denied the offence and told the court that he had nothing to do with this offence.

As the first appellate court it is our duty to evaluate the evidence given before the lower court and come to independent conclusions.

Both PW1 and PW3 relied on moonlight to identify the appellant. It is also in the of evidence of PW1 that a passing motor vehicle with lights on helped him to identify his assailants. The intensity or brightness of the moonlight was not established by the evidence of the two witnesses. Whereas it is true that PW1 said he had known the appellant for one month, the best he could say was that he used to see him seated at some corner. There is no evidence as to whether or not he had any interaction with the appellant. He did not given any physical description or the dressing of the appellant on that particular night.

The attack going by the evidence of PW1 and PW3 was sudden and if anything, it was during a fleeting moment that PW1 had to identify the appellant. It is instructive that whereas both PW1 and PW3 said they identified the appellant with the aid of moonlight, the learned trial magistrate did not give any weight to the evidence of PW3. Infact she made a finding that his evidence was not very reliable. The evidence that remained with respect to the identity of the appellant then was that of PW1.

The learned trial magistrate in her judgment said as follows:

“I have warned myself of the risk of convicting on evidence based on identification made by moonlight and passing vehicle. I have also noted that it was only one reliable witness. I am however satisfied that PW1 was able to recognize the accused person using moonlight. The accused being a person he had known before.”

Earlier in the said judgment the learned trial magistrate observed that PW1 in his evidence had said he knew his attackers and gave their names as Mbaite and Mwangi. He had also said that it was the appellant who was with a knife used to stab him and in fact he ran away when he called out his name.

There is evidence that the police officer PW2 was involved in the arrest of the appellant. He found him being beaten by members of public and was aware of the report made at the police station the previous day that the complainants had been beaten by people they could identify. However, there is no evidence whatsoever that in that report the names of Mbaite and Mwangi had been given to the police.

In the charge sheet the name of the appellant is Ian Kirimi Mwiti. The name Mbaite does not appear. Only PW1 knows where he picked the name from. We have already observed that nothing incriminating was found in the possession of the appellant herein. PW1 may have been honest in thinking that it was the appellant who attacked him, but one may be honest but at the same time mistaken and it is not uncommon for close neighbours and even relatives to be mistaken about the identity of the other.

Going by the fact that this offence took place at night and that it was sudden, considering that the court relied on the evidence of a single identifying witness without any corroboration whatsoever, there was a reasonable doubt as to the involvement of the appellant in this offence.

There was an obvious omission in the prosecution case. PW1 said he had been stabbed with a knife at the back. There is evidence he was taken for treatment but no medical evidence whatsoever was tendered to support that allegation. That is not to say that he was not injured, but such evidence would have enhanced the prosecution case although PW1 was not robbed of any personal effects.

Having said so, we have come to the conclusion that the conviction of the appellant was unsafe in the circumstances of this case.

Accordingly, this appeal is allowed, conviction quashed and sentence set aside. The appellant shall be released forthwith unless otherwise lawfully held.

Orders accordingly.

SIGNED, DATED and DELIVERED in open Court this 5th day of November, 2013.

A. MBOGHOLI MSAGHA L. A. ACHODE

JUDGEJUDGE