[2018] KEHC 8302 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL Appeal No. 58 Of 2017

From original conviction and sentence in Tigania SRM CRC No 186 of 2015 delivered on 22. 5.2017

(CORAM: GIKONYO J)

JACKSON KABERIA...................APPELLANT

VERSUS

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

JUDGMENT

The Appeal

[1] The Appellant Jackson Kaberia was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. The particulars of the offence were that on 3rd January 2015 at [particulars withheld] village jointly with others not before court while armed with dangerous weapons namely rifles and Somali swords robbed off S K one mobile phone make Nokia 1680 valued at Kshs 8000 and Kshs 6,900 all valued at Kshs 14,900 and immediately before the time of such robbery assaulted the said Sarah Kathambi.

[2] The Appellant faced a second count of gang rape contrary to section 10 of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on the aforesaid date and venue in association with another not before court; he intentionally and unlawfully caused his penis to penetrate the vagina of S K without her consent. The Appellant was tried and convicted on both counts I and II and sentenced to death and five years with hard labour respectively.

[3] Being dissatisfied by the said conviction and sentence, the Appellant filed this appeal and raised the following grounds in his Memorandum of Appeal filed in court on 2nd June 2017;

(a) THAT the Learned Trial Magistrate erred in law and in fact in failing to appreciate that the Appellant had not been properly and sufficiently identified to warrant the conviction.

(b) THAT the Learned Trial Magistrate erred in law and fact in finding that there was sufficient evidence to support the charge of robbery with violence indecent act with an adult against the Appellant.

(c) THAT the Learned Trial Magistrate erred in law and fact in failing to hold that the prosecution had not established its case beyond reasonable doubt.

(d) THAT the Learned Trial Magistrate erred in law and fact in failing to appreciate that nothing allegedly stolen was recovered from the accused or any person at all.

(e) THAT the Learned Trial Magistrate erred in law and fact in failing to appreciate the fact that the police failed and/or neglected to investigate the circumstances surrounding the case.

(f) THAT the conviction is dangerous and against the weight of the evidence.

Submissions

[4] During the hearing of this appeal on 20th November 2017, Ms Thibaru Learned Counsel for the Appellant submitted inter alia that identification was not proper as the incident occurred at 7:00 PM and it was raining. The victim did not also give a description of the assailant and that nothing that was stolen was recovered from the Appellant. She also urged that the Appellant was convicted for 5 years for gang rape when he had already been sentenced to death. Consequently Learned Counsel urged the court to uphold the appeal and set aside the conviction and sentence.

[5] Mr. Namiti for the State opposed the Appeal and contended that identification was proper as the Appellant gave a proper description of the persons who attacked her and that the ordeal lasted for one hour. Therefore, the Appellant was positively identified as one of the attackers. He replied to the last point raised by counsel for the Appellant and stated that the court can correct the anomaly and hold the other sentence at abeyance for he had already been sentenced to death in one count.

Court’s duty

[6] This being first appeal, the court is under legal obligation to re-evaluate, re-assess and re-analyze the evidence on the record and make its own findings and conclusions except having in mind that it did not have the advantage of hearing or seeing the witnesses. See KIILU & ANOTHER vs. REPUBLIC [2005]1 KLR 174where the Court of Appeal stated thus;

1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.

In doing so, I am aware that there is no any particular prescribed method of re-assessing evidence. Nonetheless, merely rehashing of the evidence as was recorded will not pass for a good style. Of great significance, therefore, is for the appellate court to employ a style imbued with judicious emphasis, an eye for symmetry or balance and an ear for subtleties of the evidence so as not to miss the grace and power of the testimony of witnesses and the law applicable thereto. Such style also insists on simplicity in writing and keeping as close as possible to the words used in the testimony recorded. And ultimately, the court should, in absolute clarity and directness, make its overall impression of the evidence adduced after placing it upon the scales of the law. I shall so proceed.

Analysis

[7] The appeal rotates around two issues, namely:

1. Standard of proof; and

2. Identification of appellant.

What story does the evidence tell?

Of standard of proof

[8] The prosecution bears the burden of proof. It must prove its case beyond reasonable doubt. Therefore, for a charge of robbery with violence to hold the elements of crime in section 296(2) of the Penal Code must be proved. The section provides as follows:-

296. (1) ………..

(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.

[9] Prosecution witnesses’ evidence and especially that of PW1, 2 and 3 remained firm, unshaken and was never challenged at the trial. PW1 gave a vivid description of what transpired on the material day, which is 3rd January, 2015 at about 7. 30pm. She narrated how she was accosted by three people, two of whom were armed with a knife and a rifle. They grabbed her and pushed her into her house while demanding for money. They also ransacked the whole house but failed to get any money. They pushed her to the second bedroom and removed her clothes and one of them placed his penis on her vagina but when he was about to penetrate her, the gunman shoved him aside and forcefully raped her. It was her evidence that before this, the thugs had demanded that she transfers money from her cell phone Make Nokia 1680 and that after they transferred the money they took away her cell phone. Personal violence including sexual violence was visited upon her. P3 form produced in court by PW3 supports this fact. PW3 Kenneth Kimathi a clinician at Muthara sub county hospital testified and produced a P3 form in respect of PW1 who had a history of being gang raped by unknown assailants. On examination, a high vaginal swab revealed spermatozoa and epithelial cells indicating sexual intercourse. In addition, the perpetrators of the crime were more than one and were also armed with dangerous weapons, to wit, a knife and a rifle. Her husband, PW2 narrated the state of her wife and the house when he arrived home on the material day. He stated that he found everything in the house was in disarray and upon enquiring from his wife she informed him that they had been attacked by thugs and robbed off a cell phone and that she had been raped. They then proceeded to Muthara police station and reported the incident.

Of identification

[10] PW1 categorically stated that she was able to identify the Appellant in an identification parade conducted at Gundune police station from a group of 8 suspects. She further stated that she was able to identify the appellant because there was electricity light in the house and that the Appellant was the one demanding money from her. It was her further evidence that the incident took about one hour and she was able to see the appellant and his accomplice all this time. Only one of the three persons was covered. PW1 was clear that the Appellant had not covered his face. Again, that evidence remained unchallenged throughout the trial. Pw4 confirmed that an identification parade was conducted on 28th January 2015 after arrest of a suspect in connection with the offence and that the complainant positively identified the suspect as one of the men who had raped her. Before I conclude on PW4, it is clear that a report was made of the robbery and rape herein, matter was investigated, suspect arrested and an identification parade was also conducted as I have stated. See evidence by PW4, Corporal Margaret Muthui of DCI Tigania East, that on 4th January 2015, he was in the office when he received report of a robbery that occurred the previous day. She stated that PW1 reported that on 3rd January she had been attacked by three armed men in her house who forced her to transfer Kshs 6,900 to a number that they gave her and that 2 of the gun men had also gang raped her and stolen her phone Nokia 1680 valued at Kshs 8,000. It was her evidence that an identification parade was conducted on 28th January 2015 after arrest of a suspect in connection with the offence and that the complainant positively identified the suspect as one of the men who had raped her. Therefore it is not correct to state in the grounds of appeal that the police failed to investigate the matter.

[11] When the Appellant was put on his evidence he simply stated that he did not know the complainant and denied having committed the alleged offences. He further stated that he had been framed for reasons that he did not know. There was no evidence whatsoever that the Appellant knew any of the prosecution witnesses prior to this incident. Indeed the Appellant stated in his evidence that he did not know the complainant. The prosecution witnesses therefore had no reason to frame the Appellant as alleged. His contention therefore can only be an afterthought.

Evidence of single identifying witness

[12] I must, however, warn myself, that identification of the Appellant was by a single witness namely; PW1. The Trial Court addressed itself to this this issue in its judgment and rendered itself inter alia thus;

“the court has warned itself of the dangers of convicting on the basis of single identifying witness and is satisfied that under the circumstances aforegoing it would be safe…..”

[13] On this subject, see the decision of the Court of Appeal for Eastern Africa in ABDALLA WENDO vs. R [1953] 20 E.A.C.A 166 that:-

“Subject to certain exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification, were difficult. In such circumstances what is needed is other evidence whether it be circumstantial or / direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

[14] Further, in RORIA vs. REPUBLIC [1967] EA 573,the Court of Appeal for East Africa also held that:-

“A conviction resting entirely on identity invariably causes a degree of uneasiness, ……………..

That danger is of course greater when the evidence against an accused person is identification by one witness and although no one would suggest that a conviction based on such identification should never be upheld.It is the duty of this court to satisfy itself that in all the circumstances it is safe to act on such identification.”

[15] InMUIRURI & 2 OTHERS vs. R [2002] KLR 274the Court of Appeal stated:

“We do not think it can be said that all dock identification is worthless. If that were to be the case then decisions like Abdulla bin Wendo v. Rep (1953) 20 EACA 166, Roria v. Republic [1967] EA 583, and Charles Maitanyi v. Republic (1986) 2 KAR 76, among others, which over the years have been accepted as correctly stating the law concerning the testimony of a single witness on identification will have no place in our jurisprudence. In those cases courts have emphasized the need to test with the greatest care such evidence to exclude the possibility of mistaken identification before such evidence is accepted and acted upon to found a conviction. We do not think that evidence will be rejected merely because it is dock identification evidence. The court might base a conviction on such evidence if satisfied that on the facts and circumstances of the case the evidence must be true and if prior thereto the court duly warns itself of the possible danger of mistaken identification.”

[16] It is clear from the foregoing that there is no prohibition on convicting on evidence of a single identifying witness if the evidence is sufficient and the court has properly warned itself of the danger of relying on such evidence. In this case, the trial court properly warned itself of the danger of relying on the evidence of the complainant who was the single identifying witness. PW1 was categorical that there was electricity light in the house. The fact that the robbery took about one hour, provided sufficient time for her to observe the assailants. Consequently, I cannot fault the Learned Trial Magistrate on this finding.

[17] In the final analysis, and having come to the above conclusions, and being guided by the decision of the Supreme Court in the case of FRANCIS KARIOKO MURUATETU & ANOTHER vs. R& ANOTHER [2018] eKLR, the circumstances of the case are such that death sentence was appropriate penalty. I therefore find the Appellant’s appeal to be without merit and is hereby dismissed.

[18] With regard to count II, the Learned Trial Magistrate committed a venial error as he ought to have held the sentence in abeyance after sentencing him to death. The error is not fatal nonetheless. The said sentence for count II shall be held in abeyance. It is so ordered.

Dated, signed and delivered in open court at Meru this 20th day of February, 2018

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kinyua for State

Mr. Kibiti advocate for M/s. Thibaru for appellant

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F. GIKONYO

JUDGE