[2015] KECA 231 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, GATEMBU & MURGOR, JJ.A)

CRIMINAL APPEAL NO. 13 OF 2014 (R)

BETWEEN

J A O..................................................................................1ST APPELLANT

PHILIP EFESA KENEWA..................................................2ND APPELLANT

JOSEPHAT OKWELO MUYERA Alias MANMAN........3RD APPELLANT

AND

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

(An appeal from a Judgment of the High Court of Kenya at Kisumu

(Muchelule & Chemitei, JJ.) dated 10th day of December, 2013

in

HCCRA. NO. 20 OF 2011)

*******************

JUDGMENT OF THE COURT

1. The appellants were charged, tried and convicted for the offence of robbery with violence and sentenced to death. The particulars of the offence were that on 1st January 2011 at about 4. 00 am at East Bunyore Location in Vihiga County the appellants jointly with others robbed J J A of cash Kshs. 10,000. 00, ten packets of Super Match cigarettes valued at Kshs. 600. 00 and two mobile phones Nokia 1110 and Motorola both valued at Kshs. 7,500. 00 and at or immediately before or immediately after the time of such robbery wounded the said J J A.

2. The appellants were also charged with a second count of gang rape contrary to section 10 of the Sexual Offences Act. They were however acquitted of that offence by the trial magistrate who found the charge fatally defective.

3. The appellants’ appeal to the High Court against the conviction and sentence for the charge of robbery with violence was not successful. They have in this second appeal challenged the conviction and sentence.

The facts

4. Bad memories of New Year’s Eve of 2011 will forever remain engraved in the mind of J A J (PW1) (Jesca). On 31st December 2010 at about 10. 00pm whilst her mother was away attending church night vigil to usher in the New Year, J and her sisters, P A (PW2) and J M (PW3), were asleep at home in their mother’s bedroom when they heard knocks on the door to the sitting room and to the window to the bedroom. Those knocking claimed to be police officers. They demanded that the door be opened. J complied and opened the door ushering in three ‘police officers’ who flashed torches. “Chimney and tin lamps were on.” The ‘police officer’ inquired from her whether she knew them. She immediately recognized the ‘police officers’ as the 1st, 2nd and 3rd appellants who were her customers “as the three usually drink liquor in our home” and as the one “who sells the liquor to them” and went on to say that the 1st appellant was indeed her step brother. She described in some detail the clothing each one of the appellants was wearing. She had also noticed that the appellants were armed with pangas and in response to the enquiry whether she knew them, she feigned ignorance.

5. J A O, the first appellant then ordered PW 2 and PW 3 to lie down. He pinned them down on the floor, covered them with a blanket and ordered J to sit on the bed and demanded money from her. The appellants then dragged J into the sitting room where they continued demanding money from her. There, J was stripped naked and raped by the first and third appellants successively. Thereafter, J was pushed back to the bedroom where the second appellant broke into an iron trunk using an iron rod. The appellants ransacked the trunk and removed mobile telephones, purses and thereafter left at about 4. 00 am after the first appellant cut J’s left hand with a panga.

6. With assistance from a neighbor, J and sisters called their mother who took J to hospital in Emuhaya and thereafter reported the matter to the area chief, Obadiah Zephania Nyangoro (PW5) and to the police where she gave the names of the appellants as the attackers. PW 5 mobilized youth to assist in arresting the appellants alongside other suspects.

7. Corporal Samuel Maina of Luanda Police Station conducted investigations before charging the appellants with the offence of robbery with violence contrary to section 296(2) of the Penal Code under count 1 and the offence of gang rape contrary to section 10 of the Sexual Offences Act under count 11.

8. In their testimony before the trial court, PW2 and PW 3 lent weight to the testimony of PW 1. PW2 stated that the chimney lamp was on when the attackers entered the house, having been let in by PW 1; that she recognized the appellants as the intruders, adding that they “normally drink liquor in our home” and that the first appellant was her cousin; that the first appellant was armed with big pliers; the second appellant with an iron bar and the third appellant with a panga.

9. PW3 also stated that a lit tin lamp enabled her identify the first appellant; that she also identified the second and third appellants “from their voices and moonlight coming in through the windows” and that “the tin lamp had been put off by the intruders after getting in.’ She was categorical under cross examination that she saw the second appellant “cutting and raping” J; that she knew the third appellant as “ManeMane” and he “always visit our home” and that aided by light from the tin lamp she identified the first appellant (who was the 4th accused before the trial court), and the first to enter the house.

10. Maina Aggrey Ambesa (PW4), a clinical officer at Emuhaya District Hospital examined J upon request to do so by officer commanding station, Luanda Police Station, and found she had a stitched wound on her left upper limb, bruised left upper limb and a bruised right thigh.

11. In their defence, all the appellants asserted that they were arrested as they went about their business, and denied the charges for offences they knew nothing about.

12. The learned trial magistrate was satisfied that the offence of robbery with violence was proved to the required standard and convicted the appellants. The High Court on first appeal upheld the conviction and sentence.

The appeal and submissions by counsel

13. During the hearing of the appeal before us, Mr. Charles Onyango, learned counsel for the appellants, submitted that both lower courts wrongly proceeded on the basis that the appellants were positively identified by recognition without analyzing the circumstances under which the identification was made; that the lower courts did not consider the intensity of light, how bright the light was and where it was positioned relative to the appellants and the complainant; and that there were inconsistencies between the evidence of the identifying witnesses. In that regard counsel referred us to the decisions of this Court in NormanAmbich Miero vs. Republic [2012] eKLR and John MuriithiNyagah vs. Republic [2014] eKLR.

14. Citing the case of Dinkerrai Ramkrishan Pandyavs. Republic [1957] 1 EA 336 for the proposition that the High Court was under a duty to review and re-evaluate the evidence, counsel for the appellants further submitted the High Court failed to discharge that obligation, for if it had done so, it would have discerned that there were glaring inconsistencies in the evidence that raised doubt as to the veracity of the witnesses’ testimonies.

15. Finally, counsel submitted that the sentence imposed by the trial court ordering the appellants to “hang” is ambiguous and illegal as the law prescribes the sentence of death.

16. Opposing the appeal, Ms. V. M. Wakio of the office of the Director of Public Prosecutions, submitted that the inconsistencies in the evidence of the prosecution witnesses were minor and immaterial and that the charge was established to the required standard; that the High Court, as the first appellate court, discharged its duty to review and re-evaluate the evidence, distilled the issues that required determination and drew its own independent conclusions; that the evidence on identification of the appellants was watertight and the circumstances were conducive to positive identification by recognition of the appellants as the source of light was indicated and the appellants were in the house for a very long time.

17. Regarding the sentence, counsel submitted that there cannot be any doubt that by sentencing the appellants to “hang”, the trial court must have meant death.

Determination

18. We have considered the appeal and submissions by learned counsel. This being a second appeal, our mandate is confined under section 361 of the Criminal Procedure Code to considering matters of law. In Karingo vs. Republic [1982] KLR 213] the Court stated:

“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari C/O Karanja vs. R(1956) 17 EACA 146)”

19. Although the appellants have set out nine grounds of appeal in their memorandum of appeal, there are only two issues of law that require determination. The first is whether the findings by the lower courts regarding identification of the appellants were well founded. The second issue is whether the learned trial court misdirected itself in imposing an illegal sentence.

20. As regards identification, and following the decisions of this Court in Norman Ambich Miero vs. Republic (supra) and John Muriithi Nyagah vs. Republic (supra) that counsel for the appellants cited to us, we agree that although three prosecution witnesses said they recognized the appellants at the scene of crime, that did not lessen the need for the lower courts to test the reliability of their evidence in the context of the circumstances that prevailed.

21. The trial court was satisfied, based on the evidence presented before it, that the appellants were positively identified. The trial court stated:

“Iam convinced by the evidence of the complainant and supported by that of PW2 and PW3 that the 2nd, 3rd and 4th accused were the robbers. They took several hours in the house during which they spoke with the complainant. They have not denied her evidence that they were well known to her and were even her customers. Two [sic] evidence shows they didn’t disguise themselves in any manner. Their names were given to the police and to PW5 which caused the latter to arrest them. Although more than three suspects were arrested, I am satisfied on the evidence that the 2nd, 3rd and 4th accused took part in the robbery. The fact that there was some light in the house further aided the complainant and the other eye witnesses in their recognition of the attackers.”

22. On its part, the High Court concluded after reviewing and re-evaluating the evidence that “there was sufficient light in the room especially the tin and chimney lamps which enabled the complainants and her witness to recognise the appellants” and that the appellants “were people whom they well knew”. The High Court concluded that:

“We are persuaded that the witnesses were able to identify and or recognise the assailants. Although PW2 gave unsworn evidence we have no doubt that her evidence corroborated that of PW1 and PW3. These are people that were well known to the witnesses. In their cross examination they failed to counteract the witnesses testimony especially the fact that they were habitual customers of the complainant.”

23. Based on our own review of the record, we are satisfied that both lower courts proceeded on the correct legal basis regarding the issue of identification and based on the evidence, arrived at the correct decision.

24. The evidence showed that the appellants were ‘liquor patrons’ of the complainant. In her words “they have drunk in our home many days before. I am the one who sells the liquor to them.” Her testimony was not at all shaken on cross-examination. The appellants were evidently not strangers to the complainant. Indeed the first appellant is a relative of the complainant and described him as a stepbrother. She described vividly the attire the appellants adorned and gave their names to the chief and to the police. PW 2 and PW 3 supported her testimony. The ordeal lasted many hours, having started at 10. 00pm the previous evening until 4. 00 a.m on 1st January 2010. Based on the evidence there were two sources of light. There was a chimney lamp and a tin lamp quite apart from the torches that the complainant asserted the appellants were flashing about. The High Court reviewed that evidence before concluding that it was “persuaded that the witnesses were able to identify or recognize the assailants.” The appellants have not made out a case for us to interfere with the findings by the lower courts on the question of identification.

25. As regards the issue whether the learned trial court misdirected itself in imposing an illegal sentence, we note that the trial court after convicting the appellants subsequently pronounced sentence in inarticulate terms thus; “All are accordingly sentenced to hang as provided by law.” Earlier in the judgment, the learned magistrate had stated:

“The prosecution evidence indicates the attackers were armed with dangerous objects like pangas and iron rods. The particulars of the charge do not however allege this under Section 296(2) of the Penal Code, however, if the attackers wounds beat, strikes or used any other personal violence against another person at or immediately after committing a robbery, he shall be sentenced to death.” [Emphasis added]

26. There can be no doubt therefore that the learned magistrate was alive to the sentence prescribed by law. There is merit therefore in Ms. Wakio’s argument that the pronouncement of the sentence in the terms that the magistrate did was a slip or error that is excusable under section 382 of the Criminal Procedure Code, as it did not occasion a failure of justice.

27. For those reasons the appellants’ appeals have no merit and are accordingly dismissed.

Dated at Kisumu this 23rd day of October, 2015

D. K. MUSINGA

.................................

JUDGE OF APPEAL

S. GATEMBU KAIRU

..................................

JUDGE OF APPEAL

A. K. MURGOR

…….………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

………………………….

DEPUTY REGISTRAR