[2017] KEHC 4483 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 23 OF 2016

JACOB OCHIENG WERE.........................................APPELLANT

VERSUS

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

(Fromthe original conviction and sentence in criminal case No.324 of 2015 of the Chief Magistrate’s Court at Busia by Hon. R.M. Washika Wachira– Senior Resident Magistrate)

JUDGMENT

JACOB OCHIENG WERE, the appellant, was convicted for the offence of robbery contrary to section 295 as read with section 296(2) of the Penal Code. He was also convicted for the offence of attempted rape contrary to section 4 of the Sexual Offences Act No.3 of 2006.

The particulars of the offence were that on 18th February 2015 at[particulars withheld]village in Busia County, robbed W E of Kshs. 500/= and immediately after the time of such robbery, used violence to the said W E.At the same place and time he attempted to rape W E.

The appellant was sentenced to suffer death in count one while in count two he was sentenced to serve five years but the sentence in count two was ordered to be in abeyance. He has appealed against both conviction and sentence.

The appellant was in person. He raised five grounds of appeal which I have summarized as follows:

1. That the learned trial magistrate erred in law and in fact by disregarding the violation of the appellant's rights.

2. That the learned trial magistrate erred in law and in fact by relying on circumstantial evidence.

3. That the learned trial magistrate erred in law and in fact by relying on hearsay and contradictory evidence.

4. That the learned trial magistrate erred in law and in fact by ignoring the appellant's defence.

The state opposed the appeal through Mr. Owiti, the learned counsel.

The facts of the prosecution case were briefly as follows:

At about 3 a.m the complainant was asleep in her house. She was roused from sleep by a person who held her by the shoulder. The intruder into her house robbed her and ordered her to strip naked and lie on the bed. When she screamed, a struggle ensued between her and the intruder whom she said was the appellant.

The appellant denied involvement in the offences.

This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

Though the appellant claimed that his constitutional rights were infringed, my perusal of the record did not reveal any instance. This ground of appeal has no merit.

The intruder who gained access into the complainant's house did so at about 3 a.m, when she was asleep. I will endeavour to find if the purported recognition was free from error. I will be guided by the celebrated decision of Lord Widgery in the case of R. Vs. TURNBULL & OTHERS - [1976] 3 ALL ER 549where he observed as follows:

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.

Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.

From the evidence on record we can make the following conclusions:

(a) The complainant must have been deep asleep and that is why she did not hear when the intruder was breaking into her house and only realized the presence of an intruder when she was held on the shoulder.

(b) That though she testified to have recognized the intruder as the appellant, I find that there was no ample time to do so especially if we take into consideration that she had just been roused from sleep.

(c) Since she did not testify that she recognized the voice of the intruder as that of the appellant, it is doubtful if indeed she recognized the intruder.

The evidence on record and the circumstances prevailing at the time of the offence, was not favourable for recognition or identification.

An attempt to commit a crime is defined in the Oxford Concise Law Dictionary (2nd Edition)as:

Any act that is more than merely preparatory to the intended commission of a crime; this act is itself a crime.

Going by the evidence on record, the mere order by the intruder to the complainant to undress cannot be said was an attempted rape. It may have been mere preparation to commit the offence of rape. It is also capable of being interpreted differently; that the intruder wanted to ensure she did not pursue him once he left the house due to her state of nakedness.

The upshot of the foregoing analysis is that the conviction of the appellant on both counts was unsafe. The same is quashed and the sentences set aside. The appellant is set at liberty unless if otherwise lawfully held.

DELIVEREDandSIGNEDatBUSIA this 18thdayof July, 2017

KIARIE WAWERU KIARIE

JUDGE