[2022] KEHC 12904 (KLR)

Iddi v Republic (Criminal Appeal E107 of 2020) [2022] KEHC 12904 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12904 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E107 of 2020

HI Ong'udi, J

September 12, 2022

Between

Kariim Hamisi Iddi

Appellant

and

Republic

Respondent

(Arising from the Judgment by J. Kingori Chief Magistrate delivered on 29th October 2020 in Chief Magistrate’s Court Bungoma Criminal Case No. 1620/2018)

Judgment

Arising from the Judgment by J. Kingori Chief Magistrate delivered on October 29, 2020 in Chief Magistrate’s Court Bungoma Criminal Case No 1620/2018JUDGMENT 1. Karimi Hamisi Iddi the appellant herein was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars being that the appellant on the 27th day November, 2018 at sinoko area within Bungoma County, jointly with others not before Court while armed with offensive weapons namely Rungus and pangas, robbed Damianious Mapesa of his motorcycle registration number KMEP 809M make TVS Red in color valued at Ksh.93,000/= (ninety three thousand Kenya shillings) and immediately before the time of such robbery wounded the said Damianious Mapesa.

2. He faced an alternative count of handling stolen goods contrary to section 322(1) as read with section 322(2) of the Penal Code. The particulars being that the appellant on the 28th day of November 2018 at 2:20 am at Webuye Township within Bungoma County, otherwise than in the course of stealing, dishonestly retained one motorcycle registration number KMEP 809M Make TVS Red in color having reason to believe it to be stolen.

3. The appellant denied the charges and the matter proceeded to full hearing with the prosecution calling nine (9) witnesses. The appellant gave a sworn statement of defence without calling any witnesses. He was later found guilty, convicted and sentenced to twenty five (25) years imprisonment.

4. Being dissatisfied he appealed against the Judgment raising the following grounds:(i)That appellant pleaded not guilty to the charges herein.(ii)That the learned trial magistrate erred in law and facts in conducting proceedings that violated the rights of the appellant as per the provision of the laws of Kenya hence null and void.(iii)That the trial magistrate erred in law and fact in convicting the appellant in the charge sheet that was defective.(iv)That there was a lot of mistakes in the trial proceedings that demanded a lot of analyzation but the trial magistrate erred ignoring thus acting bias.(v)That the trial magistrate erred in law and fact in considering extraneous factors in the decision making.(vi)That the trial magistrate erred in law and facts in convicting the appellant on evidences that were of contradiction and without analysing the same.

5. The appeal was disposed of by written submissions. The appellant’s submissions are dated August 3, 2022. He submitted that the court did not establish the density of the light that PW1 purportedly used to identify him. He wondered whether or not there was need for an identification parade. He referred the court to case of George Gichia Nganga v RepublicCr case No 23 of 1997.

6. It is his submission that there were contradictions in PW1’s evidence especially that concerning his identification. He states that PW1 said in some places that he knew his attackers and other places he said the attackers were not known to him.

7. The next issue he addressed concerns the investigations. He submits that the investigating officer (PW8) relied on hearsay evidence and did not carry out any investigations. Relying on Ndungu Kimani v Republic (1979) KLR 282 he raised the issue of trustworthiness of witnesses. He submitted that PW1 and PW8 never demonstrated that the robbery was carried out or done by him. It is his case that the prospection case was a product of false allegations with poor, unreliable and shoddy investigations.

8. The respondent’s submissions are dated August 2, 2022and were filed by learned counsel M/s Hilda Omondi. Based on the case of Oluoch v Republic (1985) KLR she identified what computes robbery with violence, as follows:a)Whether the offender is armed with any dangerous and offensive weapon of instrument; orb)Whether the offender is in company with one or more persons; orc)Whether at or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person…

9. It is her submission that a theft occurred because a motorcycle belonging to PW1 was stolen. Further PW1 was injured during the robbery and was treated at Bungoma County hospital. On identification she submitted that the appellant was positively identified by PW1. There was sufficient time for PW1 and the attackers to engage. The motorcycle was also recovered where the appellant was.

10. Her submission is that there was no need to conduct an identification parade since PW1 was present when the appellant was arrested. The trial court was therefore right in applying the doctrine of recent possession, to convict the appellant. She added that the owner of the house where the motorcycle was found testified and confirmed that it was the appellant who brought the motorcycle to the said house.

11. She contends that the sentence for such an offence is death and the 25 year imprisonment sentence is sufficient.

12. A summary of the evidence will suffice. PW1 Damianious Mapesa testified that he is a boda boda rider, of motor bike No. KMEP 809 make TVs Star which he bought from a credit company on September 25, 2018. He produced a letter of ownership (PEXB1). On November 27, 2018at 8. 00pm he was riding along Moi Avenue when he was stopped by two people who he thought were customers. They talked and negotiated and settled on Kshs.80/= as the fare.

13. He gave a full description of what each of the two customers wore and carried. After going for some distance one of the men who had been talking on phone hit him with something on the head. He jumped off the bike screaming. The man who had hit him chased him and he jumped over a fence into a compound. The two men rode off on his motorbike.

14. He was referred to Bungoma hospital where he was treated (PEXB1). His fellow riders arrived there and they went to the scene together and he recovered his phone which had dropped there. His motorbike had a tracker and so he called the Watu Credit facility and informed them of the theft. The motor bike was tracked to Webuye and together they followed the tracker leading to a certain house.

15. Upon the police knocking on the door, of the house a woman opened the door. She confirmed to them that two men had come there with a motorbike. They were with her sister. He saw his bike which was in the house and he identified it to the police. While there a man and woman emerged from a room. He identified the man as one of the alleged customers and the one he had assisted with his helmet. The man and woman were arrested by the police. PW1 identified his P3 form and the motor bike which he produced as PEXB4.

16. In cross examination he said it was the appellant who stopped him. There wasn’t much movement at the time and there were street lights at the scene. He confirmed that the appellant is the one who had asked him for a helmet saying he was unwell.

17. PW2 Godfrey Mabulwa Chesoli, and PW3 Wilson Juma Wanjala are boda boda riders. They stated that they received reports on what happened to PW1. They rushed to Bungoma district hospital where they found PW1 with an injury. They called the Watu Credit and notified them of the incident. PW2, PW3 and other boda boda riders joined the tracker and police. The rest of the evidence is similar to that of PW1. They identified the bike (PEXB1) and the appellant as the man arrested from the house, where the bike was found.

18. PW4 – Bernard Adhiambo Akelo works with Watu Credit and is a recovery and portfolio Quantity officer. His work entails tracking stolen bikes and repossession of, defaulted ones. He produced his job card (PEXB5). He explained that the company has a tracking system attached to all their sold bikes. By use of his phone he can see a particular bike, its location and movement. He identified the letter (PEXB1) issued to PW1 by the company. He stated that on 27th November 2018 at around 10. 52 pm he received a report of a motor bike registration no. KMEP 809M red in colour having been stolen in Bungoma.

19. He left Kitale that night on a boda boda and the tracking device showed the bike to be within Webuye area. Later it showed it to be near Muji FYM Primary School. At the school the signal led him to a certain nearby house. He was with the police to whom he pointed the house. Recovery was made by the police. The tracking route which was printed showed everything about the bike, registration and chassis number etc. the report was produced as (PEXB6). He identified the bike as (PEXB4).

20. PW5 Christine Nelima is the owner of the house where the bike was recovered on November 28, 2018. She stated that on November 27, 2018 at 11. 00 pm the appellant arrived at her house with her sister Mary Nanjala, on a motorbike. She identified at (PEXB4). The appellant had initially called requesting to keep the bike at her house as it had run out of fuel. She told him and Mary Nanjala that it was alright. She accommodated both of them for the night.

21. At around 2. 00 am she saw lights outside and woke up. On peeping through the window she saw police and boda boda riders. The appellant and Mary Nanjala were both arrested, and the bike recovered.

22. PW6 No. 78066 Cpl Johana Tanui of scenes of crime Bungoma took photos of the bike (PEXB4). He produced them as PEXB8 plus a certificate he made dated 9th October 2019. PW7 Mr. Elias Adika is a clinician based at Bungoma county referral hospital and he treated PW1 on 27th November 2018 for a head injury following a robbery, he referred him for a CT scan. He later filled the treatment notes (PEXB2) and the P3 form (PEXB3).The injury was assessed as harm.

23. PW8 No. 237982 PC Jared Omondi was the investigating officer in this matter. He received the complaint from PW1 and investigated it. PW1 showed him the letter from Watu Credit showing ownership of the bike KMEP 809M TVs, and how it had been tracked (PEXB6). He confirmed that PW1 had been treated at Bungoma county referral hospital (PEXB2 & 3). He also identified the bike (PEXB4) which had been recovered from the appellant.

24. PW9 No. 74590 PC Titus Musamali serves at Webuye Police Station. OnNovember 27, 2018he was on duty with Sgt Kimeiyo when they received a report of the stolen bike in Bungoma town. They left for the Muchi area where the bike was headed. They were joined by boda boda riders. The rest of his evidence and what transpired at the scene is as stated by the other witnesses.

25. In cross examination he admitted that the appellant was beaten by the boda boda riders and he was taken to hospital. He too was injured at the scene.

26. When placed on his defence he elected to give a sworn statement with no witnesses to call. He stated that o 27th November 2018 he was doing his daily chores when his girlfriend called asking him to pick her. He took her home in Muchi, and slept. Later they heard a kick at the door which opened. He was assaulted on allegation that he had stolen a bike. He had found the bike in the house. He lost consciousness and went to the hospital. At the police station he was told a girl had been arrested with the motorbike. He was later charged.

27. In cross examination he said his girlfriend was Mary working in Break point club Webuye. They had gone home on a boda boda. He denied knowing Christine (PW5) who was in the house though Mary told him she was her sister. He confirmed that the bike (PEXB4) was recovered from that house but he denied owning it. He also denied stealing it in Bungoma and hiding it in Webuye.

Analysis and determination 28. This being a first appeal, this court has a duty to re-consider and re-evaluate the evidence afresh and arrive at its own conclusion. This was enunciated in the case of Okeno v RepublicEA 32. In Ogeto v Republic[2004] 2 KLR 14 the Court of Appeal held:“On a first appeal the court has a duty to reconsider the evidence which was before the superior court, evaluate the evidence and draw its conclusions giving due allowance for the fact that it has neither seen nor heard the witnesses.”

29. I have carefully considered the evidence on record, the grounds of appeal, the submissions, cited authorities and the law. I find the main issue for determination to be whether a case of robbery with violence was proved against the appellant.

30. Section 296(2) of the Penal Code reads:“296 (2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

31. This section sets out the ingredients which must be proved besides theft for a charge of robbery with violence to stand. These are:-(i)The offender must be armed with a dangerous or offensive weapon or instrument OR(ii)Must be in company with one or more other person / persons OR(ii)Immediately before or after the time of robbery he/she wounds, beats, strikes the victim.

32. The first issue to consider is whether there was proof of theft of PW1’s motorbike registration no. KMEP 809M TVs red in colour. In the first place did PW1 own such a motor bike? Evidence on record confirms that PW1 bought the motorbike from Watu Credit. PW4, an employee of the said company produced a report (PEXB6) and one of the documents annexed shows the details of the bike plus its owner. Further PW2 and PW3 who are fellow riders with PW1 also confirmed knowing him as the owner of the bike. The appellant never disputed that fact. I therefore find that the motorbike in issue belonged to PW1.

33. Next is whether the motorbike was stolen from PW1. Again this has been confirmed by PW1, PW2 & PW3, who learnt of the incident and rushed to see the complainant at the Bungoma county referral hospital also referred to as Bungoma district hospital. Further reports were made to PW4 of Watu Credit plus the Police through PW8 & PW9. Immediate investigations were undertaken leading to the recovery of the motorbike. I am therefore satisfied that the ingredient of theft of the motorbike was established.

34. On whether any violence was meted out on PW1 the evidence on record confirms that PW1 explained that he was hit on the head with an object and he bled and had to rush to hospital. PW2 and PW3 who followed him to the hospital confirmed seeing the injury. He was attended to by PW7 (a clinician) at Bungoma county referral hospital. PW7 confirmed that PW1 had a head injury which was assessed as actual bodily harm. He produced the treatment notes and P3 form as PEXB2 & 3 respectively. The investigating officer (PW8) confirmed having issued the P3 form (PEXB3) to PW1.

35. PW1 testified that his attackers were two and both of them rode away with his motorbike. All these established ingredients clearly confirm that indeed a robbery with violence was committed against PW1, on the material night.

36. Having confirmed the above the issue that follows is whether the appellant was identified as one of the robbers. The only witness who spoke about this is PW1. It was about 8. 00 pm and it was dark. PW1 was alone when he met with the attackers. He said he was driving along Moi Avenue when he met the two “customers”. As they reached Bungoma High fence where there were security lights he was told to slow down. It’s then that the attack occurred.

37. Pw1 had not known any of these “customers” of his before this incident. There was no other witnesses to this incident. Can the court solely rely on this evidence of identification at the scene of robbery to convict? My answer is that the court would require additional evidence since no identification parade was conducted.

38. In Wamai v Republic [2003] KLR 279 the Court of Appeal held thus:“1. While it was true that the conditions for identifying one or more of the gang were not ideal there were a lot of other factors that supported the identification of the appellant as one of the robbers and without any error of law or principle, there was no justification for the appellate court to depart from the finding made by the two lower courts.”

39. PW4 – Bernard Adhiambo Akelo explained in detail how their tracking device works. PW1’s motorbike which had been bought from PW4’s company had a tracking device fixed on it. It is by the use of this device that PW4 was able to track the stolen motorbike (PEXB1). He did this as PW1 – PW3 and police officer (PW9) and other officers followed him.

40. The tracking led them to PW5’s house near Muji Primary School. PEXB4 was recovered from the said house and was identified by both PW1 and PW4 as the stolen motorbike. PW5 explained herself on how the motorbike landed in her house. She said it was the appellant and her sister Mary Nanjala who had come with it. The appellant whom she had never met before requested her to allow them keep PEXB4 there until the next day for lack of fuel. She allowed them to spend the night in her house.

41. Both the appellant and Mary Nanjala were arrested. It was PW5’s evidence that Mary after leaving her house with her children went to their parents’ home. She thereafter disappeared. The Investigating officer (PW8) informed the court that though Mary was a witness she had not been traced for bonding.

42. In his sworn defence the appellant admitted having picked and taken his girlfriend Mary to her home where they even slept. He confirmed that Mary told him PW5 (Christine was her sister). In cross examination he said PW5 was in the house where they slept. He also confirmed that the motorbike (PEXB4) was found in that house. He further stated that the motor bike was not his and he denied having stolen it in Bungoma and taken it to Webuye. He however does not say by what means he took Mary to PW5’s home. I have carefully analysed the appellant’s defence and the evidence by the evidence by the prosecution witnesses.

43. PW5 is the owner of the house where the appellant, Mary Nanjala and the motorbike (PEXB4) were found on the material night. She explained and was categorical that it is the appellant and her sister Mary who came with the motorbike. PW5 and the appellant had never known each other nor met. She was firm in her evidence which was not shaken in cross-examination. She had no reason to lie against him. He was found in possession of PW1’s stolen motorbike on the same night of its theft.

44. Contrary to the appellant’s submissions there were not contradictions in the evidence by the witnesses. The investigations were well conducted by the police, assisted by the Tracker (PW4). The appellant was confirmed to have been the conveyor, of the motor bike into PW5’s house. He was therefore found in possession of stolen property.

45. In Wandue v Republic [2003] KLR 26 the Court of Appeal while dealing with a matter under similar circumstances held thus:1. The two courts below had properly considered the circumstances under which the appellant was identified and came to a correct finding hence there was no reason for upsetting that finding.

2. The only inference that could be drawn from the very recent possession of complainant’s stolen property by the appellant was that he was one of the two men that had just robbed the complainant.

3. The aforesaid inference plus the evidence of identification of the appellant as one of the two robbers, and the events that took place immediately after the complainant had been attached leading to this appellant’s arrest conclusively established the guilt of the appellant.

46. My finding is that the appellant was found in possession of the stolen motorbike hours after the robbery. He did not give any explanation for the said possession. The only inference to be made is that he was one of the two men who robbed PW1 of the bike. (PEXB4). 47. Before sentence the trial court called for a pre-sentence report which was filed and the Court assessed it. It found him unsuitable for an alternative sentence. He was said to be a first, offender. The trial court relied on Muruatetu I to sentence him to twenty five (25) years imprisonment instead of the death sentence.

48. Following the guidance by the Supreme Court of Kenya in Murautetu II the mandatory death sentence for a charge of Robbery with violence remains, and there is no alternative to it. The appellant is lucky to have benefitted from Muruatetu I, and should be grateful. I will therefore not interfere with the sentence meted out by the trial court.

49. The upshot is that the Appeal lacks merit and is dismissed. The conviction and sentence are confirmed.

Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 12TH DAY OF SEPTEMBER, 2022 AT NAIROBI.H. I. ONG’UDIJudge of the High Court