[2017] KEHC 3895 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL APPEAL NO. 81 OF 2015

(Being an Appeal from Original Conviction and Sentence in Criminal Case No.193 of 2015 of the Chief Magistrate’s Court at Naivasha before E. Kimilu - SRM)

JACKSON MAMBO ARWA………………………………………………………….APPELLANT

-VERSUS-

REPUBLIC…………………………………………………………………………PROSECUTOR

J U D G M E N T

1. The Appellant Jackson Mambo Arwa was tried and convicted for the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. The particulars stated that on the 8th day of December 2013 in Gilgil township within Nakuru County, while being armed with dangerous weapon, a pistol robbed Washington Njeru Muririthia of mobile phone make Nokia C2 valued at Kshs 5,000/= and immediately before or immediately after the time of the such robbery used actual violence to the said Washington Njeru Mutirithia. He denied the charges and a full trial commenced.

2. The trial terminated with his conviction. The Appellant was consequently sentenced to death. Aggrieved with the outcome, he filed an appeal to this court. In his amended grounds of appeal filed prior to the hearing of the appeal, he raises four grounds, namely:

“1. THAT, the pundit trial magistrate erred both in law and facts when she convicted me in the present case yet failed to find that the Section 214 (1) of the Criminal Procedure Code was not duly complied with.

2. THAT, the learned trial magistrate erred both in law and facts when she convicted me by relying on unproved allegations that I had lend the phone has security for Kshs 500/=.

3. THAT, the learned trial magistrate erred both in law and facts when she convicted me in the instant case yet failed to find that the charges of robbery labelled against me are defective.

4. THAT, the learned trial magistrate erred both in law and facts when she disbelieved my plausible defence.”

3. He supported the grounds through written submissions. Regarding grounds 2 and 4, which primarily challenge the adequacy of the prosecution evidence at the trial, he submitted that the evidence by PW3 who linked him to the phone stolen from the complainant was not corroborated. He said PW3 was not truthful and was himself a suspect. He complains that his “plausible” defence did not receive adequate consideration from the trial court.

4. On ground 1 the Appellant contends that he was prejudiced by the court’s non-compliance with Section 214 of the Criminal Procedure Code after an amendment to the charge sheet. Moreover, that the amended charge sheet was defective in that the statement of offence does not cite Section 295 of the Penal Code. And that the ommission renders the trial a nullity.

5. The appeal was opposed by the DPP through Mr. Mutinda. He submitted that the oral and material evidence adduced at the trial established all the ingredients of the offence charged. He urged the court to dismiss the appeal.

6. In his response, the Appellant stated that evidence in respect of the recovery of the police Ceska Pistol was not independently corroborated, for instance, by way of inventory.

7. As stated in Pandya -Vs- Republic [1957] EA 336 the duty of the first appellate court is to review the trial evidence afresh and to draw its own conclusions. The court observed that:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

8. The prosecution called seven witnesses during the trial. The gist of the prosecution case was that early on the morning of 20/10/2013 Chief Inspector Fundi (PW2) was asleep in his house at Site area, Gilgil. A gang of robbers armed with a sharp knife and an AK 47 rifle burst into his bedroom. They threatened to kill him and ordered him to lie face down facing the wall. They took his Ceska Pistol which was tucked in the mattress, a television set and woofer before escaping. The matter was reported to police and flying squad officers in Naivasha.

9. On 8/12/2013 a second robbery was committed by a lone gun man who was armed with the stolen Ceska firearm. The victim Washington Njeru(PW1) was ambushed at dawn break at his shop at Gilgil. The gun man demanded cash from PW1. When PW1 said he had some Shs 500/= in his house close to the shop, the robber started walking him there but changed his mind on the way, shooting PW1 on the chest. PW1 took PW1’s Nokia C2phone when it fell. He forced PW1 back to the shop. He collapsed. Police who were called to the scene collected a spent cartridge as PW1 was rushed to hospital for treatment.

10. It is the prosecution case that in December 2013 the Appellant gave Gerald Onyango Lubalo (PW3) the Nokia C2 phone as collateral for an advance of Shs 500/=. PW3 did not use it until a few days prior to 3/1/2014 when he was lured by a phone call by a supposed boda boda customer to a hotel. The ‘customer’ turned out to be police who arrestedPW3. He led police, including Corporal Okumu (PW5) of Naivasha Flying Squad to the home of the Appellant.

11. The officers found the Appellant at home. They recovered the Ceska Pistol, a magazine and fifteen rounds of ammunition, two of them spent. The pistol was identified as PW2’s stolen pistol while PW1identified the recovered Nokia C2 phone. PW2also identified the Appellant who he said had wielded a panga during the robbery at his house in October 2013.

12. The recovered firearm, live and spent ammunition were dispatched to the ballistics expert for examination. The spent cartridge collected from the scene ofPW1’s attack was found to have been fired from PW2’s Ceska pistol.

13. In an unsworn defence statement, the Appellant stated that he is a resident of Naivasha and was a cook by profession. He testified that on the day of his arrest on 3/1/2014 he was returning home from work. He met with a man who was being chased by police. Both he and the fleeing man were arrested. Police did not give him reasons for the arrest but escorted him to Gilgil Police Station. That police also escorted him to his house where they retrieved his phone before taking his finger prints. He was “surprised” by the charges filed against him.

14. The rest of his statement consisted of what appeared to be more of submissions than evidence. In conclusion however he produced as an exhibit being police Occurrence Book No. 12 of 8th December 2013 at 7. 15 hours regarding the attack onPW1 to demonstrate that the witness did not identify his assailant..

15. There is no dispute that the appellant was arrested on 3/1/2014 in connection with robbery reports made at Gilgil Police Station. Concerning the robbery on PW1, there is no dispute that the witness could not identify the lone gunman who robbed him at dawn on 8/12/2013. And while PW2purported that he identified the Appellant during the material morning, no identification parade was held after the Appellant’s arrest. The witness not having known the Appellant before should have been invited to an identification parade to test the accuracy of his alleged identification of the Appellant.

16. PW2’s identification evidence in court was no more than dock identification which is worthless. The Court of Appeal for Eastern Africa in Ajode -Vs- Republic [2004]2 KLR 81, stated concerning such evidence that:

“It is trite law that dock identification is generally worthless and a court should not place much reliance on it unless it has been preceded by a properly conducted identification parade. It is also trite law that before such a parade is conducted, and for it to be properly conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade (see case of Gabriel Kamau Njoroge -Vs- Republic [1982 – 88] 1 KAR 1134).”

17. Therefore in this case the main evidence against the Appellant was circumstantial. The evidence relates to the Appellant’s alleged possession of PW1’s Nokia C2 phone recovered from PW3andPW2’sCeska Pistol from which, the spent bullet recovered at the scene of PW1’s attack was fired. From the prosecution evidence the first event in the transaction was the loss of PW2’s Ceska Pistol with several rounds of ammunition in a magazine (Exhibit 6) during the robbery at his Gilgil house. That was in October 2013.

18. The lone gunman who robbed PW1of his Nokia C2phone at Gilgil town on 8/12/2013 had a firearm. That PW1 was shot in the chest during the robbery is confirmed by the P3 form Exhibit 2 produced by Dr. Kinyeru(PW7).

19. Ag. IP Omuse (PW4) visited the robbery scene in respect of PW1on the morning of 8/12/2013 in the company of other officers. PW4collected the spent cartridge (Exhibit 1) from the scene of robbery during the visit. But it would seem that, it was only after Gerald Onyango Lubalo PW3switched on the Nokia C2phone taken from PW1 in the robbery that Flying Squad police officers got the first break in their investigations.

20. Evidence by PW3 and PW5 is that police lured the former, a boda bodacyclist to a rendezvous where he was arrested. Police recovered the Nokia C2 phone identified later by PW1 as his property. PW3also led to the arrest of the Appellant who had allegedly given the phone toPW3earlier as a collateral for a Shs 500/= loan. The Appellant has challenged the evidence byPW3asserting that he was an accomplice and his evidence uncorroborated.

21. In the case of Kinyua -Vs- Republic [2002]1 KLR 256 the Court of Appeal set out principles for dealing with accomplice evidence as follows:-

“Before corroboration can be considered, a court of law dealing with an accomplice witness must first make a finding as to the credibility of the witness. If the witness is so discredited as not to be worthy of any belief, that is the end of his evidence and unless there is some other evidence, the prosecution must fail. If the court decides that the witness though an accomplice witness, is credible then the court goes further to decide whether it is prepared to base a conviction on his evidence without corroboration. The court must direct and warn itself accordingly.

If the court decides that the accomplice witness’ evidence, though credible requires corroboration, the court must look for, find and identify the corroborative evidence.”

22. In her judgment the trial magistrate observed concerning the Nokia phone:

“The complainant was robbed off his mobile phone make Nokia C2. The same was tracked by police until Mr. Gerald Onyango (PW3) was found in possession of the same. He stated that accused left him with the mobile as a security for a loan of Kshs 500/=. He loaned him money since he was a good customer in his boda boda business and he knew him very well.”

23. Clearly the trial magistrate accepted and believed the evidence byPW3. The trial magistrate also considered the evidence connecting the Appellant with the Pistol stolen from PW2and used in the robbery against PW1.

24. In the case of Ndara s/o Kariuki & 6 others (1945) 12 EACA 84, at Page 86 -Vs- Republicthe Court of Appeal observed that:

“A point which is sometimes lost sight of in considering accomplice evidence is, that the first duty of the court is to decide whether the accomplice is a credible witness. If the court, after hearing all the evidence feels that it cannot believe the accomplice it must reject his evidence and unless the independent evidence is of itself sufficient to justify a conviction the prosecution must fail. If however, the court regards the accomplice as a credible witness, it must then proceed to look for some independent evidence which affects the accused by connecting or tending not connect him with the crime. It need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. But in every case, the court should record in the judgment whether or not it regards the accomplice as worthy of belief.”

25. The evidence concerning the recovery of the Ceska Pistol, its magazine and several rounds of ammunition at the home of the Appellant was also accepted by the trial court. The evidence, led throughPW4and PW5 is consistent and was not shaken during cross-examination and at no point did the Appellant contend during cross-examination ofPW4and PW5 that he was mistakenly arrested while they chased a third man.

26. According to PW4 the Appellant was polishing his shoes at his house when police arrived. It would be most unusual that PW3 blindly implicated and led police to the Appellant concerning the stolen phone while police “planted” a Ceska Pistol and ammunition on him. There is no evidence that the police officers knew the Appellant before his arrest. Indeed they only traced him because PW3had switched on the phone the Appellant had given to him. The Appellant’s possession of the phone in the same month whenPW1 was robbed is significant. His defence being a denial did not rebut the prosecution evidence on this score

27. On the application of the doctrine of recent possession of stolen goods, the Court of Appeal stated in Ogembo -Versus- Republic, [2003]1 EA,that:

“For the doctrine of possession of recently stolen property to apply, possession by the appellant of the stolen goods must be proved and that the appellant knew the property was stole`n.”

Recently, this Court in Moses Maiku Wepukhulu & PAUL NAMBUYE NABWERA -Versus- Republic CR.A NO. 278 OF 2005(Koome, Mwera & Otieno-Odek, JJ.A.) quoted with the approval what constitutes the doctrine of recent possession in the case of Malingi -Versus- Republic, [1989] KLR 225:

“By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. That the item he has in his possession has been stolen; it has been stolen a short period prior to their possession; that the lapse of time from the time of its loss to the time the accused was found with it was (from the nature of the item and the circumstances of the case) recent; that there are no co-existingcircumstances which point to any other person as having been in possession of the items.”

The doctrine is a rebuttable presumption of fact. Accordingly, the accused is called upon to offer an explanation in rebuttal, which if he fails to do, an inference is drawn, that he either stole or was a guilty receiver.

As was aptly stated in the case of Hassan -Versus- Republic, (2005) 2 KLR 151:

“Where an accused person is found in possession of recently stolen property, in the absence of any reasonable explanation to account for this possession, a presumption of fact arises that he is either the thief or a receiver.”

28. Moreover recent possession of the complainant’s phone was not the only piece of evidence linking the Appellant with the robbery on PW1. The spent cartridge recovered at the scene of PW1’s robbery and shooting was upon examination with other ammunition fired from the recovered pistol found to match. The pistol was recovered in the Appellant’s house about one month since the attack on PW1.

29. In the opinion of the ballistics expert the cartridge was fired from the Ceska Pistol. This evidence is also unchallenged and independently links the Appellant to the robbery at PW1’s shop. The trial magistrate made a correct finding that the evidence proved that the spent cartridge collected at PW1’s shop area was fired using the Ceska Pistol earlier stolen from PW2. The Appellant’s defence was dislodged by the pieces of evidence arrayed against him and was properly rejected. This disposes of ground 2 and 4 of the Amended grounds.

30 .Concerning ground one, it is true that the particulars of the charge were amended afterPW1 had testified. The purpose of the amendment was to delete words to the effect that the Appellant was charged jointly with another person and that in addition to the pistol, the robbers were armed also armed with an AK 47. The trial court did not inform the Appellant at the point that he was entitled to demand to recall PW1. Looking at the entire proceedings the amendment was minor in my view and the omission by the court did not prejudice the Appellant in any way.

31. As regards the trial court’s non-compliance with Section 214 of the Criminal Procedure Code the Court of Appeal (Nyeri) stated in Josphat Karanja Muna -Vs- Republic [2009] eKLR that it would not interfere unless the omission to comply therewith was shown to have caused prejudice:-

“On non-compliance with Section 214 of the Criminal Procedure Code, we observed that as far as the Appellant is concerned, the substituted charge at page 5 of the record did not introduce any new matter into the main charge that would have necessitated recalling of witness. All the substituted charge did was to introduce an amended name of the complainant …. That the spirit of Section 214 is to afford an accused person opportunity to recall and cross examine witnesses where the amendments would introduce fresh element or ingredient into the offence with which an accused person was charged. It certainly was not meant to be invoked every time an amendment is made even if such an amendment is only to introduce a correction of the name or of a word. Here the name Ben Chege Gikonyo was amended to read Ben Cheche Gikonyo. We do not accept that the non-compliance with the provisions of Section 214 of the Criminal Procedure Code resulted into injustice to the Appellant.”

32. On the preference of the offence as being contrary to Section 296 (2) of the Penal Code alone, this does not render the charge defective, as asserted in grounds 3 of the appeal. Section 295 of the Penal Code defines the offence of robbery while Section 296 (2) partly creates and prescribes the punishment for the offence of violent robbery. It is not mandatory to include both Sections in the statement of the offence. In this case the charge includes all the necessary ingredients of the offence.

33. In case of Robert Mutungi Muumbi -Vs- Republic [2015] eKLR where the Court of Appeal observed that:-

“The appellant is correct that ideally the charge must include both the section creating the offence and that prescribing the punishment, although it is worth noting that the forms provided in the Second Schedule to the Criminal Procedure Code on the framing of charges do not make any reference to the punishment section. This Court has emphasized time and again the importance of drawing a charge sheet with care and precision so that the accused person understands in clear and unambiguous terms the offence with which he or she is charged. That makes it easier for the accused person to plead to the charge and also to effectively prepare his or her defence. This is also a fundamental requirement of Article 50(2) (b) of the Constitution, which demands that every accused person be informed of the charge with sufficient detail to answer it. (See also Yosefu -Vs- Uganda [1969] EA 236)……..

Section 382 of the Criminal Procedure Code is also relevant to the question raised by the appellant. That provision insulates a finding or sentence of the trial court from challenge on account of any error, omission or irregularity in the charge, unless it has occasioned a miscarriage of justice. (See George Njuguna Wamae -Vs- Republic,CR. APP. NO. 417 OF 2009)………

Similarly in Amedi Omurunga -Vs- Republic, CR. APP. NO. 178 OF 2012, this Court invoked section 382 of the Criminal Procedure Code and declined to interfere with the conviction where the appellant had, like in the present case, been charged under the punishment section without any reference to the section creating the offence. The Court found that the appellant had an opportunity to raise the issue before the trial court but did not; that he was well aware of the charge against him and its particulars; that he had effectively participated in the trial; and that no miscarriage of justice had been occasioned.

The Court also rejected the reasoning of the High Court in Samuel Fondo Gona -Vs- Republic, (supra)andMutinda Mwai Mutana -Vs- Republic(supra), which had held, without reference to section 382 of the Criminal Procedure Code, that a charge sheet that cited only the punishment section was fatally defective. The Court expressed itself thus:

“To our mind, we are satisfied that the irregularity in the charge-sheet did not imperil the appellant or occasioned him a failure of justice. Given the foregoing, the decisions of the High Court that the appellant sought to rely on were decided without subjecting the conclusions to the test of whether that omission occasioned a failure of justice and thereby prejudiced the appellant. To that extent they do not represent good law and ought to be discarded or disregarded.”

34. The charges as drawn comply with Section 134 of the Criminal Procedure Code which states:

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

35. The Appellant’s vigorous participation in the trial is clear demonstration that he understood the nature of the charges facing him. No prejudice was occasioned to him. There is no substance on grounds 1 and 3. In the result the amended grounds of appeal have no merit. Consequently, this appeal fails and is dismissed in its entirety.

Delivered and signed at Naivasha, this 14thday of July, 2017.

In the presence of:-

Mr. Mutinda or the DPP

N/A for the Appellant

C/C-Barasa

Appellant-Present

C. MEOLI

JUDGE