[2013] KEHC 1228 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 12 AND 14 OF 2009

JAMES KIKASE ITUKAN ….................................................}

EKATAPAN LODUKWAI .....................................................} APPELLANTS

VERSUS

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

(Appeal arising from the decision of Hon. T. Nzyoki, SRM in Lodwar Senior Resident Magistrate's Court in Criminal Case No. 767 of 2006 delivered on 19th March, 2009)

J U D G M E N T

This is an appeal from the decision and judgment of the Learned Senior Resident Magistrate at Lodwar in Criminal case No. 767 of 2006 in which the Appellants, James Kikase Itukan and Ekatapan Lodukwai, were convicted and sentenced to death for robbery with violence contrary to Section 296 (2) of the Penal Code.

It was alleged that on 28th June, 2006 at Kalokol Trading Centre in Turkana District, while armed with a dangerous weapon namely AK 47 rifle, the Appellants robbed Peter Kapero Lokaale of cash Kshs. 6,030 and immediately thereafter wounded the said Peter Kapero Lokaale and fatally wounded Cpl. Geoffrey Jirongo, an Administration Police Officer.

There was a second count of unlawful possession of a firearm without a firearm certificate contrary to Section 4 (2) (a) read with Section 4 (3) (a) of the Firearms Act in which it was alleged that on the 9th October 2006 at Todenyang Location Turkana District, the second Appellant Ekatapan Lodukwai was found in possession of a firearm make AK 47 Serial No. 9000030 without a firearm certificate.

However, in view of the conviction and sentence on count one, the Learned Trial Magistrate refrained from making any finding on the second count, a move which we think was erroneous as the Learned Magistrate would have gone ahead to make necessary findings and in case of a conviction he would have imposed the applicable imprisonment sentence and ordered that the same be held in abeyance in view of the death sentence in count one.

Indeed, in the case of Gachuru Vs Republic (2005) 1 KLR 688, which was relied upon by the Learned Trial Magistrate in his judgment, it was held by the Court of Appeal that once a death sentence is imposed once, the other counts are left in abeyance so that if there is a successful appeal on the count on which the death penalty has been imposed, the Court dealing with the appeal would consider all the counts and if necessary impose the appropriate sentence on the count on which the appeal is not allowed.

Be that as it may, the Appellants were dissatisfied with the conviction and the sentence imposed upon them by the trial Court and preferred separate appeals which were herein consolidated and heard together. Basically, the appeals are based more or less on similar grounds contained in the Appellants' respective petitions filed herein on 26th March 2009. The complaints raised by themselves are to the effect that their respective conviction was erroneous for reasons that first Appellant was not at the scene of the offence when it occurred, that first Appellant was arrested for trespassing and not robbery, that both Appellants were wrongly identified by the complainant, that the trial Court relied on the evidence of a single witness to convict them without warning itself as required, that the offence occurred in the night and there was no light to enable identification of the attackers and that the Learned Trial Magistrate disregarded their defence.

Both Appellants represented themselves at the hearing of the appeal and relied on their respective written submissions containing additional grounds of appeal.

The Learned Prosecution Counsel, Mr. Chelashaw, opposed the appeals on behalf of the State/Respondent by submitting that there was enough evidence of identification against the Appellants as the complainant (Pw 1) had previously known them. That, although the offence occurred in the night, the complainant conversed with the two Appellants and identified them by voice. That, the complainant informed Pw 2, 3, 4. 5 and 6, the names of the persons who had attacked and robbed him. That, Appellant two was at the time of his arrest found in possession of a firearm which had been used to fire shots at the complainant and an Administration Police Officer who suffered fatal injury.

The Learned Prosecution Counsel contended that the ingredients of robbery with violence were established and that the defence by both Appellants could not stand.

The Learned Prosecution Counsel urged this Court to dismiss the appeals and contended further that the conviction of the two Appellants by the trial Court was proper.

We have considered the rival submissions. Our duty is to re-visit the evidence and draw our own conclusions bearing in mind that the trial Court had the advantage of seeing and hearing the witnesses (see, Okeno Vs Republic [1972] EA 32and Achira Vs Republic [2003] KLR 707).

Briefly, the Prosecution case was that on the material date at about 6. 30 pm, the complainant Peter Kapero Lokaale (Pw 1), was at Kalokol Trading Centre when he met the two Appellants who were known to him. He knew both parents of the first Appellant (James Kikase Itukan) and the second Appellant (Ekatapan Lokukwai) was his nephew. He gave them Kshs. 50 as requested by the second Appellant and they went away. However, at about 10. 00 pm while he (Pw 1) was sleeping outside a hut belonging to Elaine (Pw 5), the two Appellants went there and woke him up asking for water. He wondered why they were moving in the night. The three engaged in conversation and suddenly, the second Appellant demanded more money from the complainant (Pw 1) lest they kill him. He became scared and made an attempt to run away. A gun shot was fired and he was hit on his left leg. He fell down in pain and thinking that he was dead, the Appellants searched his person and took away his wallet containing Kshs. 6,030. He raised alarm after the two Appellants left and heard a gunshot from a distance. His Area Chief responded to his alarm but he (Pw 1) became unconscious and later found himself at the Lodwar District Hospital. He was interrogated by Police Officers while in hospital and after his discharge, he later heard that the Appellants had been arrested.

On the 28th September 2006, the complainant informed his uncle Simon Losuat Ngikeel (Pw 2), what had happened. He (complainant) then requested him (Pw 2) to fetch the second Appellant who had shot him (complainant) on the leg with a firearm. Simon (Pw 2) thereafter went in search of the second Appellant and traced him at Todenyang. He later enticed the second Appellant to give him his firearm for usage briefly. The second Appellant obliged and handed over the firearm. All along he (Pw 2) had a letter from his Chief with information about the second Appellant and the offence he had committed.

On obtaining the firearm from the second Appellant, Simon (Pw 2) proceeded to a nearby G. S. U. Camp and handed over the firearm to the Police Officers based there. He also told the Officers that the second Appellant was a wanted person.

The Officers arrested the second Appellant and took him to Lokitaung Police Station.

The said officers included Sgt. Julius Some (Pw 7), who arrested the second appellant and handed him over to the Lokitaung Police along with the firearm found in his possession.

APC Salim Yusuf Wako (Pw 3) and APC Victor Tekuenyi (Pw 4) and other Administration Police Officers including the Late Cpl. Jirongo were at their camp at Kalokol when they were attracted by gunshots emanating from the local Trading Centre. They armed themselves and made towards the scene. They arrived at a tarmac road and more gunshots were fired. Thereafter, they realized that Cpl. Jirongo had been shot and killed by a gunshot.

Morris Elaine Ewoyote (Pw 5), confirmed that the complainant (Pw 1) was shot and injured on the leg while he was at his (Pw 5's) homestead. He (Pw 5) ran to the nearby Kalokol Police Patrol Base and reported the matter.

The Chief, Kalokol division, John Lochakolong Lolimo (Pw 6), was at his home on the material date when he heard gunshots. He thought of going to the scene of the gunshots but became scared and decided to sleep. On the following day, he found a group of Police Officers and members of the public gathered near a tarmac road at the local Trading Centre. He saw the dead body of late Cpl. Jirongo on the ground. He commenced his own investigations and later learnt three people from outside his location may have been involved in the crime. These included James Kikase Itukan (first Appellant), Ekalopan Lodukwai (second Appellant) and one Kisike.

The Chief (Pw 6) was informed by the complainant (Pw 1) that he (Pw 1) was on the material date of the offence shot and injured by the two Appellants.

Harun Ekai Echwaa (Pw 8), confirmed that he was involved in the arrest of the Appellants and P. C. George Mwaura (Pw 10), based at Kalokol Police Patrol Base at the time was one of the Police Officers who responded to the gunshots that were heard on the material date at Kalokol Trading Centre. He confirmed that the late Cpl. Jirongo was shot and killed as they were proceeding to the scene of the gunshots. He later on the following day went to the scene of the shooting and collected several spent cartridges which he handed over to the Criminal Investigations Department (C. I. D).

A Clinical Officer, Bernard Bundotich (Pw 11), produced a medical examination report (P3 form) which confirmed that the complainant (Pw 1) had suffered injury on his leg occassioned by a gunshot and a ballistic expert, Chief Inspector Alex Ndindi Mwandawiro (Pw 12), examined the firearm make AK 47 recovered from the second Appellant and confirmed that it was a firearm in terms of the Firearms Act and that it was in good working condition. He also examined the recovered spent cartridges and confirmed that they were fired from firearms of types AK 47 and G3.

P. C. Japhet Mambo (Pw 9), based at the Lodwar C. I. D. at the time, investigated this case and eventually preferred the present charges against the Appellants.

In his defence, the first Appellant denied the charge and said that he was at his home at Kaptapakim Manyatta in Kerio and did not go to Kalokol Trading Centre on the material date. He further said that the second Appellant was not known to him and that he was arrested on 15th July 2006 for trespassing the Lodwar Airstrip.

Appellant two stated in his defence that he did not commit the alleged offences and that on the material date he was at his home in Kokuro village Turkana North District. He further stated that he was arrested at Todenyang on allegation of stealing animals from the Merille Community.

After considering all the foregoing evidence and the applicable law, the Learned Trial Magistrate concluded that the Prosecution case for the offence of robbery with violence had been established beyond reasonable doubt against the two Appellants.

On our part, we find in regard to the offence of robbery with violence that the ingredients thereof were duly established by the Prosecution and that the only issue that fell for determination was the identification of the Appellants as the persons responsible for the offence.

The defence raised by each of the Appellant was a denial and a suggestion that they were not at the scene of the offence on the material date and time. However, the complainant (Pw 1) testified of having seen both the Appellants at the general scene of the offence (i.e. Kalokol Trading Centre) earlier at about 6. 30 pm prior to the commission of the actual offence. In fact, the two Appellants were known to the complainant and that the second Appellant was his own nephew. Indeed, the two Appellants having not been strangers to the complainant (Pw 1) were seen and recognized by him firstly, when they met at Kalokol Trading Centre and secondly, when they found him at the home of Elaine (Pw 5) sleeping outside a hut. The complainant conversed with them before they asked for more money from him using threats. He feared for his life and attempted to run away but was unfortunately shot on his leg after a gunshot was fired at him. His wallet containing Kshs. 6,030 was unlawfully taken away from him by the two Appellants before they left and he raised alarm.

Elaine (Pw 5) confirmed that the complainant was shot and injured on his leg on the material night. He (complainant) mentioned to Simon (Pw 2), APC Salim (Pw 3), APC Victor (Pw 4) and the Area Chief (Pw 6) that he was shot and injured by the Appellants. APC Slim and APC Victor and their colleagues revealed that they were responding to gunshots fired from Kalokol Trading Centre as well as the distress calls made by the complainant when their colleague, the late Cpl. Jirongo, was shot and killed by a gunshot suspected to have been fired by those who attacked the complainant.

Although the Appellants denied the offence and offered an alibi as a defence, the evidence by the complainant (Pw 1) was found credible enough by the Learned Trial Magistrate in so far as it established the identification by recognition of the two Appellants as having been the offenders and in essence discrediting the alibi raised by them.

The said identification of the two Appellants by the complainant (Pw 1) was that of a single witness in difficult circumstances. However, the Learned Trial Magistrate correctly warned himself of the dangers of convicting a suspect on the basis of evidence of identification by a single witness before convicting the two Appellants.

In the circumstances, we see no valid reason to fault the two Appellants' conviction by the Learned Trial Magistrate for the offence of robbery with violence. They were indeed positively identified by the complainant as the offenders although it cannot be said with certainty that they were also involved with the shooting to death of the late Cpl. Jirongo in view of the evidence that several spent cartridges fired from different firearms were recovered at the scene of the shooting.

With regard to the second count of possession of firearm without certificate affecting the second Appellant, we find that the evidence by Simon (Pw 2) confirmed that the second Appellant was indeed in possession of a firearm contrary to what he stated in his defence and since he did not produce a valid certificate to justify his possession thereof he was in unlawful possession of firearm.

The charge was thus proved by the Prosecution to the required standard.

In sum, the appeals by both Appellants lack merit and are hereby dismissed in their entirety.

With regard to the second count, the second Appellant will serve seven (7) years imprisonment. However, in view of the sentence in count one, the sentence in count two will be held in abeyance.

Ordered accordingly.

(Delivered & signed this 5th day of November, 2013).

J. R. KARANJA

JUDGE

E. OBAGA

JUDGE

In the presence of:

Appellants: ….................................................

….................................................

Respondent: ….................................................