[2017] KEHC 2675 (KLR)

REPUBLIC OF KENYAq

IN THE HIGH COURT OF KENYA AT ELDORET

CONSOLIDATED CRIMINAL APPEAL NO. 7 OF 2012

ISAAC MANYENGO ABUKU.………………..…….……….…………...1ST APPELLANT

JOHN MUTONYI LUTENYO…………………………………………….2ND APPELLANT

VERSUS

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

[Being an appeal from the original conviction by A. Onginjo, Chief Magistrate, dated 15th December 2011; and, delivered on 13th January 2012 in Eldoret Criminal Case No. 1891 of 2011]

JUDGMENT

1. The appellants were convicted for robbery with violence contrary to section 296 (2) of the Penal Code. They were sentenced to suffer death.

2. The particulars of the charge read as follows-

“On the 27th day of May 2011 at Musembe village, in Lugari District within the Western Province, jointly robbed Jefether Walela Wekesa cash Kshs 12,400 and one mobile phone make Nokia RH-19 (c) all valued at Kshs 21,400 and after the time of such robbery used actual violence to [sic] the said Jefether Walela Wekesa.”

3. The appellants are aggrieved by their conviction and sentence. The original petition of appeal by the 1st appellant was lodged on 25th January 2012. At the hearing of the appeal, the 1st appellant relied on amended grounds of appeal filed with leave on 30th July 2015. The 1st appellant abandoned the earlier grounds filed on 25th January 2012.

4. The 2nd appellant on the other hand lodged a petition of appeal on 25th January 2012. On 16th March 2015, an amended petition of appeal was filed through his counsel. At the hearing of the appeal, the 2nd appellant acted in person. He relied on amended grounds of appeal filed with leave of the court on 4th August 2016. He unequivocally abandoned the grounds filed earlier on 25th January 2012 and the amended petition of 16th March 2015.

5. The appeals were consolidated on 9th February 2017. The operative grounds of appeal by the 1st appellant are four. First, that there was variance between the charge sheet and the evidence; secondly, that the prosecution witnesses gave contradictory evidence; thirdly, that there was no evidence that the complainant was ever admitted at Webuye District Hospital; and, lastly, that the exhibits produced cast doubt on the prosecution’s case.

6. The 2nd appellant’s amended grounds of appeal are three. First, that there was a variance between the charge sheet and the evidence; secondly, that the prosecution witnesses were unreliable and gave contradictory evidence; and lastly, that there was non-compliance with the provisions of section 200 (1) of the Criminal Procedure Code.

7. At the hearing of the appeal, both appellants relied entirely on their home-made submissions. They were filed on 27th July 2017 and 30th July 2017 respectively. The core of the submissions is that the prosecution failed to prove the charge beyond reasonable doubt. I was implored to allow the appeal.

8. The Republic contests the appeal. The position of the State is that all the ingredients of the offence were proved. The learned Prosecution Counsel, Ms. B. Oduor, submitted that the appellants spent considerable time with the complainant before robbing him; and, that their identification was positive. The evidence of the clinical officer (PW4) established that the complainant was wounded in the attack. Lastly, she submitted that the corpus of evidence linked the appellants to the crime; and, that their defences were hopeless.

9. This is a first appeal to the High Court. I am required to re-evaluate all the evidence on record and to draw independent conclusions. In doing so, I have been careful because I have neither seen nor heard the witnesses. See Pandya v Republic [1957] E.A 336, Ruwalla v Republic [1957] E.A 570, Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32, Kariuki Karanja v Republic [1986] KLR 190.

10. On 27th May 2011 at about 6. 00 p.m., the complainant was at Musembe market. His mission was to buy fertilizers. But it had rained. He decided to patronize a bar in the market. He found the two appellants there. He knew them. He testified as follows-

“They [1st and 2nd appellants] were people I had known earlier. I spoke to them and bought beer for Isaack; John refused to take beer. At 8. 00 p.m., when I left bar the [two] accused persons followed me and held me and ordered me not to raise alarm or even talk. I recognized them as there was moonlight and I had just been with them. They spoke to me and they said if I raised alarm they would kill me; it is Isaack who was very harsh to me. John held my left hand and held it from behind to the right and started ransacking my pockets; I had sold a cow and had Kshs.11,700 which I wanted to use for buying fertilizer. I also had Kshs. 1500/= separately. I used Kshs 500 at the bar. I also had mobile phone make Nokia on my shirt’s breast pocket.

“They took all my money and thereafter pushed me and I fell on my right hand side. The phone remained. They were still standing while I was on the ground and when I got [the] phone I called my wife and told her my life was in danger. When they heard that they snatched the phone and Isaack kicked me in [the] private parts and I lost consciousness and they took me to a house which I could not identify. I regained consciousness while at Webuye District hospital. My private parts were severely injured and I cannot control…..short calls. My left arm was painful and swollen. I was also injured on [the] right side of chest. I was admitted for [two] days at the hospital. When I was discharged I went to Lumakanda Police Station and found the suspects had already been arrested.”

11. PW2 was Rose Naliaka. She is the wife of the complainant. After receiving the call from the complainant, she went to Musembe market. She found people huddled in small groups; talking in low tones. She learnt that there was someone lying unconscious in a nearby house. She went to the house. The house was locked from outside. She entered and found the complainant. His hands were tied. He was unconscious. The house belonged to Isaack (1st appellant).

12. PW2 then realized that the 1st appellant had the complainant’s mobile phone in his shirt pocket. The 1st appellant threatened her. He said he would beat her. She told him that her priority was to take the complainant to hospital. PW2 asked the appellants to assist her with some money to take the complainant to hospital. She testified that the appellants started an argument between them over who had taken money from the complainant.

13. PW2 later made a call to the Administration Police. The police responded in about twenty minutes. Both appellants were still at the scene. PW2 finally got assistance and took the complainant to Webuye District Hospital.

14. PW3 was Police Corporal Ondeima. PW2 informed him that the complainant was in danger. He asked her to go to Mzee Walela’s bar and find out. PW2 called him later to say her husband was lying unconscious at Musembe market. PW3 proceeded to Musembe centre. The members of the public had arrested the two appellants. PW3 prevailed upon the public not to lynch them. He re-arrested the appellants. PW3 said that Isaack (the 1st appellant) was found in possession of a mobile phone belonging to the complainant.

15. PW4 was Peter Wenani. He is a clinical officer. He examined the complainant. The head was normal. There was tenderness on the neck and the anterior right chest. His opinion was that the injuries were inflicted by a blunt object. He said that on 28th May 2011 the complainant was treated at Webuye District Hospital. On 2nd July 2011 he received further treatment at Lugari District Hospital. PW4 classified the injuries as harm. He produced in evidence the P3 Form and the treatment notes (Exhibits 1 and 2).

16. I have then considered the substance of the defence put forth by the appellants. The 1st appellant made an unsworn statement. He said that on the day he was arrested, he was on his way from his from a farm where he was weeding. He found police officers at his home. They hand cuffed and beat him. He said the police wanted him to make an admission over something he had not done. He said that the 2nd appellant was then brought in. They were both taken to Lumakanda Police Station. They were then informed of the complaint and eventually charged with the offence.

17. The 2nd appellant testified under oath. He said that on the material day, he was at Musembe trading centre. He heard some noise emanating from the 1st appellant’s house. He went there. He found the 1st appellant being beaten. His hands were tied. The complainant was seated next to the 1st appellant. He said that members of the public pushed him next to the 1st appellant. The two were tied together. He said that PW2 and her son came to the scene and claimed that the complainant had been poisoned. At 5:00 p.m., the appellants were taken to Lumakanda Police Station. He said that the police forced him to admit to the offence.

18. When cross examined, he conceded that he knew the complainant. He said they were in-laws. He said he had gone to the market to buy some soap. He said that on 27th May 2001, he saw the 1st appellant at the shopping centre. They did some casual work. He said they parted ways and the 1st appellant went into a hotel. He denied accompanying the 1st appellant into the hotel. But he admitted that he took some alcohol at a pub in Musembe centre. He admitted that he saw the complainant and the 1st appellant seated at one table at the pub. He said the two left before him. He said he remained behind with some friends until 9:00 p.m. Regarding the mobile phone, he said it is the complainant’s wife (PW2) who had it. He only saw the phone later at Chekalini AP Post.

19. A number of matters arise from that evidence. The first relates to identification. In Kiarie v Republic [1984] KLR 739, the Court of Appeal had this to say-

“It is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken. Where the evidence relied on to implicate an accused person is entirely of identification, that evidence should be watertight to justify a conviction.”

20. In Maitanyi v Republic [1986] KLR 198 at 201, the Court of Appeal delivered itself as follows-

“It must be emphasized that what is being tested is primarily the impression received by the single witness at the time of the incident. Of course, if there was no light at all, identification would have been impossible. As the strength of the light improves to great brightness, so the chances of a true impression being received improve. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by, there would have been a careful inquiry into these matters, by the committing magistrate, State counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of senior magistrates trying cases of capital robbery to make these inquiries themselves. Otherwise who will be able to test with the “greatest care” the evidence of a single witness?”

21. When I juxtapose those authorities against the evidence, I find as follows. The appellants spent a considerable amount of time together at the bar at the trading centre. Secondly, the complainant was not a stranger to the 2nd appellant. He was an in-law. Both appellants conceded that they were together with the complainant at the bar on the material day. The complainant testified that he knew both appellants well. When he left the bar they followed him; threatened to kill him; attacked him; and, robbed him of his money and mobile phone. There was moonlight.

22. I have reached the inescapable conclusion that granted a combination of all those circumstances, the appellants were positively identified by the complainant. Doubt is removed completely because PW2 found the complainant unconscious in the house of the 1st appellant. She was emphatic that both appellants were present; and, that they were quarrelling over the spoils. Furthermore, the 1st appellant was still in possession of the complainant’s mobile phone.

23. The next key question is whether all the ingredients of the offence of robbery with violence were established. Section 296 (2) of the Penal Code provides-

“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”.

24. First, the complainant testified that he had the money and a mobile phone. He had recently sold a cow; and had gone to the market to buy fertilizers. He went into great detail about the property that was stolen; and, how the two appellants robbed him. Secondly, there were two assailants. They threatened the life of the complainant. They wrestled him to the ground and injured him. When PW2 found him in the 1st appellant’s house, he was unconscious.

25. There is then the evidence of PW4, the clinical officer. He testified that the complainant’s neck was tender. There was also tenderness on the anterior right chest. His opinion was that the injuries were inflicted by a blunt object. He said that on 28th May 2011 the complainant was treated at Webuye District Hospital. On 2nd July 2011 he received further treatment at Lugari District Hospital. PW4 classified the injuries as harm. He produced in evidence the P3 Form and the treatment notes (Exhibits 1 and 2). That evidence corroborated the evidence of the complainant.

26. In our criminal justice system, the legal burden of proof lay throughout with the prosecution. Woolmington v DPP [1935] AC 462,Bhatt v Republic [1957] E.A. 332, Abdalla Bin Wendo and another v Republic (1953) EACA 166, Kaingu Kasomo v Republic, Court of Appeal at Malindi, Criminal Appeal 504 of 2010 (unreported), Republic v Stephen Ngomo, High Court, Eldoret, Criminal Case 25 of 2008 [2016] eKLR.

27. When juxtaposed against the clear evidence of the prosecution, the defences by the appellants were a complete sham. On re-appraisal of all the evidence, they are unbelievable. I am satisfied from the entire corpus of that evidence that all the material elements of the offence of robbery with violence were present; and, that all the ingredients were proved beyond reasonable doubt.

28. I will now deal with the question of compliance with section 200 (3) of the Criminal Procedure Code. The section requires the succeeding magistrate to explain to the accused, on the record, of the right to recall any witnesses. Section 200 (3) is couched in mandatory terms: the succeeding magistrate shall inform the accused person of that right. Where the accused is convicted on evidence not wholly taken by the convicting magistrate, the High Court can overturn the conviction if there is a material prejudice. In that event, a new trial may be ordered.

29. I have carefully examined the hand written transcript and the typed record. The evidence of all the five prosecution witnesses was recorded by A. Onginjo, Chief Magistrate. She found the appellants had a case to answer. The same magistrate heard the defence by each appellant. I have seen the original hand written judgment by A. Onginjo, Chief Magistrate. It is signed by her and dated 15th December 2011. The judgment was delivered on her behalf; and, signed in open court by another magistrate, D. K. Kemei, Senior Principal Magistrate on 13th January 2012. The latter sentenced the appellants. He was entitled to do so. The typed record does not obviously disclose the true picture. It has been corrupted to show that the judgment was written by G. Mmasi, Senior Resident Magistrate who had nothing to do with it. From the original, hand written transcript, I find that there was no infraction of section 200 of the Criminal Procedure Code.

30. Lastly, the evidence of PW1, PW2, PW3 and PW4 was consistent and reliable in the material parts. I am unable to hold that the prosecution witnesses were unreliable; or, that the corpus of evidence was materially at variance with the charge sheet. There was concrete evidence of identification; and, that both appellants robbed the complainant of the cash and mobile phone.

31. In the end, I am satisfied that the conviction was safe. The appellants were sentenced to suffer death. The sentence is mandatory. See Joseph Njuguna Mwaura and others v Republic Nairobi, Court of Appeal, Criminal Appeal 5 of 2008 [2013] eKLR.

32. The upshot is that the consolidated appeals lack merit. They are hereby dismissed.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 9th day of October 2017.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

1st and 2nd appellants.

Mr. Muchiri for the Republic.

Mr. J. Kemboi, Court Clerk.