[1998] KEHC 77 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Criminal Appeal 306 & 307 of 1997

(From original Judgement in Nyeri CRIMINAL Case No. 1187/96 heard byMr. Muga

Apondi, CM.)

JAMES MAINA NDIRANGU

PETER NDUNGU MWANGI…………………..…....APPELLANTS

VERSUS

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

27/7/98

Coram: Mwera, Juma J J

Miss Mwai Adv. for 2 appellants

Kabitu - Learned State Counsel for Republic

Gikaria, Njiru c/clerks Swah/Eng

Both appellants in court

JUDGEMENT

The two appeals herein were consolidated heard and disposed of together.They arose from NYI CM CR.C. No. 1187/96 wherein James Maina Ndirangu wasaccused 2. His appeal before us is NYI HC CR.C.A. No. 306/97. The otherappellant Peter Ndungu Mwangi was accused 1 in the lower court. His appealhere is NYI HCC CR.A. No. 307/97. These two were charged with a third manJohn Kariuki Munyeria. But after their trial the learned trial magistrate acquitted Kariuki and went on to convict James Maina and Peter Ndungu as we now set out the charges.

Count 1 read that c/s 296 (2) Penal Code, the 3 men aforementioned on23. 5.96 within Gatundia area of Laikipia district jointly armed with a dangerousweapon, a gun, robbed Daniel Nderitu Thuthwo of his motor vehicle reg. No. KAA615 B Nissan Urvan worth shs. 830,000/- and immediately before or immediatelyafter the time of such robbery killed the said Daniel Nderitu.

Count 2 also c/s 296 (2) Penal Code was to the effect that the trio on 24. 5.96along NARO MORU NYERI RD, Nyeri jointly armed with a dangerous weaponnamely a firearm robbed James Mwai Githeiya of his motor vehicle reg. No. KND456 Datsun Saloon valued at shs. 120,000/- and immediately before orimmediately after the time of the robbery used actual violence on the said JamesMwai.

There was a 3rd count again against all the 3 accused persons. It stated thatc/s 296(2) P.C. on 24. 5.96 at Marua along KIGANJO-KARATINA RD Nyeri, thethree jointly armed with a dangerous weapon, namely a gun they robbed oneChristopher Morris of his motor vehicle reg. No. KAC 9711, a Citroen, plus cashshs. 20,000/-, all valued shs. 1. 4 m. That immediately before or immediately afterthe time of such robbery killed the said Christopher Morris.

Pleas of guilty were taken and recorded on 17. 6.96 while the actual trial gotunder way on 9. 9.96 before the Senior Principal Magistrate. As stated above the accused 3 in the lower court was acquitted but then these 2 appellants were foundguilty on all the 3 charges of robbery.

Miss Mwai filed a petition of appeal for each of them. She argued themtogether because the appeals were consolidated. The thrust of her argumentscentred on two broad aspects: IDENTIFICATION of the appellants and theCONFESSIONS they allegedly made.

We heard that as regards count I, the alleged identification of Peter Mwangi(2nd appellant) was not without fault. That the only witness Ephantus Wanjohi(P.W.I), a watchman at a Caltex Filling Station at Kiamba who fuelled a NISSANmotor vehicle at 6:30 a.m. on 24. 5.9 and did not know the appellant before. He had said that he saw that motor vehicle arrive at the station and he saw 3 people in it.He then added that he identified Peter Mwangi at an identification parade on15. 6.96 at Ngarua Police Station - some 21 days later. But much as the learnedstate counsel argued that the police coming back to this filling station to get P.W. 1as a witness was as a result of Peter Mwangi's statement of confession, this wasgreatly watered down by what P.W.I said in cross examination by PeterMwangi:

"After the parade I ate meat with you at Kinamba Trading Centre incompany of police officers. I never ate meat with you before the parade."

This should be seen in the light of Peter's evidence that:

"On 11th June, 1996 I was taken to Kinamba Trading Centre in the "company of 6 police officers. While there I was taken to a butchery where P.W.6 brought P.W.I. Thereafter P.W.6 stated to P.W.I that

"This is the person that I was telling you about....... " Though P. W. 1 denied seeing me, he was told about the reasons for my arrest.Ultimately we ate meat with police officers and P.W.I. Eventually Iand the police officers went to Sufiri leaving P.W.I behind.

............... On 15. 6.96 I was taken back to Kinamba Police Station by P.W.7. P.W.I came and identified me during the identificationparade. The said parade should have been carried out before we atethe meat with P.W.I."

Now for all that it takes to investigate crimes and in some conduct identificationparades, what in the name of heaven was P.W.6, who appears in the record asP.C. Julius Kaimenyu, doing feasting with a suspect Robert Mwangi, with aprospective witness Ephantus Wanjohi (P.W.I) on meat at Kinamba trading centrewhether before or after the identification parade of 15. 6.96? At least that comesfrom P.W.I himself in cross-examination. Can it thus be said that P.W.I whonever knew Peter Mwangi before and who saw him only for 5 minutes at a fillingstation at Kinamba on the morning of 24. 5.96 was able to identify him on a paradewithout some "help" from P.W.6 or indeed any other police officers? Not at all.Yet that is the only evidence which connects these appellants to the offence inCount I because the owner of the NISSAN was killed. Indeed this court entertainsa strong feeling that Peter Mwangi and his mates could have something to do withthis incident but is the evidence of identification by P.W.I worth much with thefeasting with Peter and police officers involved in investigating the offence? We donot think so. The police do not expect us to commend them for carrying outinvestigations in this manner. What P.W.I presented on identifying Peter Mwangi in regard to Count I was the most worthless type of evidence in the circumstances.Feasting with suspects and police officers whether before or after an identificationparade or indeed as long as a crime is on the table is never the way police shoulddo their duties. We conclude that the appellants ought not to have been convicted oncount 1 with this type of evidence. In any case P.W.I did not speak of identifyingJames Maina, the other appellant herein or the co-accused who is acquitted. So with this kind of evidence on this charge the appeal is allowed conviction quashed and the sentences set aside.

At this point we may as well dispose of count 2, the appeal against whichthe learned state counsel had nothing to put forward but to concede. We think thiswas right because there was no evidence to support it. And it goes this way.

James Mwai, (P.W.4) the owner of the Datsun reg. No. KND 456 was onthe road from Naro-Moru to Nyeri on the morning of 24. 5.96 He was flaggeddown by a man with a jerry can near a stationary NISSAN. He stopped to give thejerry can man a lift to go and fetch petrol. That man got into the Datsun andpulled a pistol on Mwai. He was ordered into the back seat. He complied. Otherpeople jumped into the Datsun from the NISSAN. Mwai was ordered to keepquiet. They drove on. At the junction to Karatina Mwai with his captors overtooka Citroen driven by a European. Down the road the Datsun was stopped in themiddle of the road. The Citroen came along. It was blocked by the Datsun so itstopped. Mwai's captors left his car with ignition keys in place and went to thatCitroen. He had a chance. He drove off. Later on the same road the Citroenpassed him at a high speed with the European sandwiched in the rear seat.P.W.4 did not identify his captors. They were armed but they did not demand or in anyway threaten to steal anything from him. Indeed they let him go off with hismotor vehicle as they apparently now saw something better in the white man'sCitroen. They just drove on, although in an extremely awkward position but thatwas that. And it goes this way. In view of all this robbery against P. W.4 was notproved.

The last count of robbing and killing Morris, the owner of the Citroen, thencame up for scrutiny. Miss Mwai submitted that the appellants were convicted onthis count 3 because Peter Mwangi allegedly confessed and that in his statement heimplicated James Maina. But that that confession was repudiated as having beenextracted with torture violence etc. and such other misdeeds as to make itinvoluntary. That indeed to involve James Maina, his co-appellant here wasevidence of the weakest point. The case of GORGE KARANJA MWANGI &OTHERS vs R NRI CR. APP. No. 132/83 (CA) was cited to us on this account.That the learned trial magistrate could only convict on the repudiated statement ofPeter Mwangi if he was convinced and satisfied that it was true. And in thisregard our attention was drawn to the case of JOSEPH NJARAMBA KARURAVS R (1982-88) 1 KAR 1165. The learned appellant's counsel strenuously madeattempts to persuade us to accept a notion that if the appellants led police officersto the spot where Morri's body was lying in the forest, that amounted to aconfession and that there ought to have been a caution administered before theappellants did so. We took this to mean that leading the police to the dead bodywas as good as one stating that they had killed Morris in the robbery whereuponthe appellants ought to have been cautioned. That that act of leading the police tothe scene of the body would be put in evidence in a court of law. This was quite aningenuous approach to the law governing confessions. But we were not persuaded that indeed in such situations cautions ought to be administered. We heard that cigarettes butts that were recovered from the citroen and analysed with the saliva from Peter Mwangi, whereupon there was agreement, did not preclude aprobability that Morris, the owner of the Citroen was also a smoker whose salivagroup was the same as Peter Mwangi's.

Miss Mwai moved to another aspect of the evidence which the learned trialmagistrate relied on: whether Peter Mwangi was found wearing the clothes ofMorris, deceased, or that he was in his own clothes and only that Morris' clotheswere planted on him. She drew our attention to the evidence of C.I Kamunde(P.W.I6) and that of Birgen (P.W. 15). We will revert to this evidence presently.

Then the court heard that James Maina 1 st appellant had put forth an alibithat the prosecution did not displace namely that he had been to Kamakwa andwhen he was asked by friends to go and do some electrical work at Kinamba, theyrode in the Citroen and that is how he was arrested. On this issue of alibi, wewere told of the case of KARATON OLE LESARAUVSREPUBLICCR.APP. 78/88 (MBA)

We heard that the learned trial magistrate relied on circumstantial evidenceto convict yet that evidence was not water-tight. That the appellant Peter, too hadput forward an alibi. He was lost in the forest and that is how Birgen (P.W. 15)arrested him.

The learned state counsel countered that Robert Mwangi was found wearingMorris's clothes. The cigarette butts found in the Citroen were analysed for salivagroup and the same tallied with the specimen taken from Peter. The twoappellants led police to where the body of Morris was hidden in the forest. Thatwhile Peter was arrested as he was chased by police in the farms, James Mainaeven slept at a cattle dip. He then got on a NRI matatu the following day and thatis where he was arrested.

We then rose to consider a decision on this Count 3. We observe as thelower court did that there was no direct evidence but that it was by circumstantialevidence that the 2 appellants were convicted. The learned trial magistrate visitedthe scene where the body of Morris was found in the forest and accepted the policeevidence and indeed the prosecution case that Robert Mwangi and James Mainaled the police to the scene. He discarded the defences of the appellants includingalibis as being fabrications. An alibi must be displaced by evidence from theprosecution if it stands to be displaced. But if it is raised and all circumstancestaken in regard show that the alibi has no basis then it cannot be displaced. Herethere are the confessions that the learned trial magistrate found worthy to rely onafter due tests and the chain of events do not permit a place of an alibi.

We however agree that perhaps the saliva test i.e. the cigarette butts and thespecimen from Peter Mwangi did not by itself exclude the possibility that Morriswas also a smoker and his saliva group was the same as Peter's. But still it was astrong point to take besides other evidence.

We may next remark on the clothes that Peter allegedly wore at the time ofarrest. The prosecution evidence was that they belonged to Morris. Peter Mwangiinsisted that he had been forced to wear them after the arrest.

To resolve this point we look at the evidence of Birgen (P.W.15) who first arrested Peter and the police evidence. Said Birgen:

"While arresting the accused 1 he was wearing a blue jacket and blacktrousers. However he was wearing different shoes. The accused 1was wearing a white shirt with yellow and brown stripes. He is nowwearing the same in court."

C.I. Kamunde (P.W.16) told the lower court on the arrest of Peter Mwangi,appellant 1.

"On the following morning I received information that some Turkana hadarrested a suspect. I immediately proceeded there and I found the suspect -the accused 1 whom I rearrested. After interrogation, the Accused 1 gavethe list of the other suspects whom they were together with in the Citroen.The accused 1 was wearing a shirt - MFI 7, a trouser MFI15. He alsoinformed me that the other suspects were still in the forest. While carryingthe Accused 1 in my motor vehicle we went back to the forest again. On theway a Turkana boy informed me that there was a man walking veryfast while his clothes were stained (sic) with mud. At a distance I sawthe man about 1/2km away going towards the bus station. Immediately a matatu came and stopped next to the suspect that we were pursuing. The said matatu was heading towards Nyahururu. Consequently, we chased thematatu to Nyahururu where I found the passengers had alighted.On checking another Nissan going to Nairobi, I found that the Accused 2was lying on the front seat. I observed that the trouser, coat and shoes werecovered with mud."

The witness then stated that he arrested the Accused 2 also and took both toNyahururu Police Station.

"After interrogating both the accused 1 and 2 they volunteered to go andshow us where they had dumped the European. Both of them led us to Aberdare Forest...................... both the Accused 1 & 2 led through a foot path for 300 years (meters?). Thereafter they led us to a bush where we sawthe deceased European lying facing down. It was the Accused 1 who pointed out the body saying "........... this is the body........ " On observing the body, I saw a bullet wound which was bleeding."

The evidence then went on to other aspects of the case. The foregoing evidencewas in Rumuruti area where this witness had got word that the motor vehicle of theEuropean had been spotted. He went there and found an aeroplane with policeofficers searching. They came to the abandoned Citroen. The police gotinformation that the occupants of that motor vehicle had entered the forest. Sothey laid an ambush that led to the arrest of Peter Mwangi and James Maina. This was the evidence of P.W. 16. We recount his evidence to the length we do to show the chain of events and also to clarify this point of the deceased's clothes which Peter is said to have won

To finish with the clothes first, we encountered some confusion because only Birgen P.W.15 described them. P.W.16 C.I. Kamunde or Dr. Robert Morris (P.W.3) the deceased's Morris brother did not. So in the light of the evidence of P.W. 15 that the clothes Peter Mwangi was first arrested in were the ones he wore in court at the time of trial, we were unable to conclude that the exhibits in court were also the clothes. Peter wore at the time of arrest and that he was photographed in them.

We however move to the more important part of the case. The learned trialmagistrate was satisfied that the two appellants led the police officers to the scenewhere the body of Morris was. But even if the statement of Peter Mwangi wasdiscredited by the defence on all evidence we believe it was a true account by PeterMwangi - about himself, (Exh. P54). It spoke of Peter and others killing Morrisin the forest by shooting after robbing him. This was before 25. 5.96 when thegroup picked up James Maina at Kamakwa, Nyeri. They then drove to Nyahururuin the Citroen of Morris, with James. It got punctures and developed otherproblems. They attended to these and continued driving in Rumuruti area untilpolice gave them a chase in a plane. They stopped the motor vehicle and fled intothe bush. This statement of appellant 1 does not speak of James Maina being withthe Peter's group before Morris was robbed of cash, clothes and motor vehicle(Citroen) and subsequently killed. He was picked up later on 25. 5.96 at KamakwaNyeri, after all those acts. His statement (Exh.55) said so and so he did repeat inhis defence. This consistency cannot be ignored. The two appellants wenttogether with the police to show where Morris lay dead in the forest. But then itwas Peter Mwangi who offered to go and point it out. When he got there he told the police with P.W.16 that "............... this is the body." We can say that James

Maina was a victim of circumstances. But this should serve as a deadly warning tothose who associate with wrong-doers.

Thus we allow James Maina's appeal on count 3 by quashing the convictionand setting aside the sentence. As for Peter Mwangi, appellant 2, we uphold theconviction and sentence oncount.3

James Maina may be set at liberty unless otherwise lawfully held.

In the result the 2 appellants' appeals on both counts 1 and 2 are allowed.As for count 3 only the appeal of James Maina is allowed. That of Peter Mwangiis dismissed.

Judgment accordingly.Delivered on 26th October, 1998.

J.W. MWERA J

J.V.O. JUMA J