[2013] KEHC 6782 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 128 OF 2008

JAMES MBUGUA MUREGA ..............................................APPELLANT

VERSUS

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

(From the original conviction and sentence in Criminal Case No. 1967 of 2008 of the Chief Magistrate’s Court at Kiambu by G. W. Macharia – Senior Magistrate 11thApril 2008)

JUDGMENT

Introduction

James Mbugua Muregawas tried and convicted for the offence of robbery with violence contrary to Section 296 (2)of thePenal Code.He was sentenced to suffer death in accordance with the law.

Brief particulars of the offence that led to that conviction were that on the 5th day of August 2007 at Kasarini area in Kiambu District within Central Province, jointly with others not before court and while armed with a toy pistol, they robbed John Kabaya of cash Kshs.5000/= and at, or immediately before, or immediately after the time of such robbery they threatened to use actual violence against the said John Kabaya.

Grounds of Appeal

The appellant has raised three (3) grounds of appeal in which he states, first, that the trial was conducted in a language he did not understand, second, that he was not able to cross-examine PW2 and PW3 and to sufficiently prepare for his defence because of the language barrier, and third that he was convicted and sentenced on the evidence of a single witness.

The Respondent’s Reply

Miss Njuguna, Learned State Counsel, opposed the appeal and contended that the record shows that the elements of the charge were explained in a language the appellant understood and he pleaded not guilty. Second, that he cross-examined both witnesses hence language could not have been a barrier. Third, that the evidence of PW1 was sufficient since the appellant attacked PW1 in broad day light at 10. 00 a.m. and after the attack the complainant followed the appellant until he got to where there were people and screamed prompting the appellant’s arrest.

The Language Used In Court

In grounds No. 1 and 2 in which the appellant averred that the language barrier rendered him unable to follow the proceedings and also to conduct his defence, we relied on the decision of the Court of Appeal in the case of JOHN KAMAU GITHUKU AND ANOR VS. REPUBLIC CRIMINAL APPEAL NO. 229 OF 2008 (unreported), in which their lordships held that since the appellant participated in the proceedings after the plea was taken, there was no prejudice suffered on his part.

We do note that in the instant case the record shows that at the time of taking plea, English/Kiswahili interpretation was employed. The appellant did plead to the charge and did not raise any issue on the language used being a hindrance to his following the proceedings. As the proceedings progressed, he cross-examined the prosecution witnesses, gave his sworn testimony quite well, and also answered the questions put to him in cross examination by the prosecution quite well. We are therefore satisfied that he was not prejudiced in any way on this ground.

Case Summary

For better understanding of the evidence we set out a brief summary of the case appealed upon. PW1 testified that he was driving along Paradise Lost road within Kasarini area in Kiambu when he saw three men walking ahead of him. The men were some 200 metres away when he first saw them and when he got to where they were, they got into the road and stood in front of him, barring his way and forcing him to stop.

One of the men drew a pistol as the other two moved to stand on either side of his car. The one with the pistol pulled him out of the car, searched his pockets and removed his wallet, from which he took Kshs.5000/=. The three men then walked towards Kiambu direction. The complainant however, having noted that the implement in the man’s hand was an imitation firearm, followed the men and when he got to where there were members of the public, he shouted for help.

The three men attempted to flee in different directions but members of the public managed to arrest one of them, who was subsequently charged and is the appellant before the court.

The appellant denied the offence in his sworn testimony and called no witnesses. He stated that he was hit by a motor vehicle as he was crossing a road. Further that he lost consciousness and when he recovered he found himself in hospital nursing a broken leg. He was subsequently taken to the police station and charged. In his view the complainant framed him with this offence after hitting him with his car.

Analysis of Evidence

Identification

In ground No. 3, in which the appellant faulted the trial court for founding a conviction on the evidence of a single identifying witness, we find that indeed the case before us turned on the evidence of visual identification by a single witness. We warned ourselves of the dangers of relying on the evidence of a single identifying witness and submitted the evidence in this case to the test in the much cited decision of Charles Maitanyi v Republic [1986] KLR 198

In the case cited above Nyarangi, Platt and Gachuhi JJA held as follows:

“Although it is trite law that a fact may be proved by the testimony of a single witness, 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.

When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description.

The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made.

Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction.

In re-evaluating the evidence afresh therefore to reach our own conclusions as was our mandate as the first appellate court, we carefully directed ourselves regarding the conditions prevailing at the time of identification and the circumstances under which PW1 said he had identified the appellant, to test those conditions for possibility of error.

An inquiry into the evidence revealed that the persons who attacked PW1 were strangers to him but the encounter occurred in broad day light at about 10. 30 a.m. The evidence states that the robbers lined themselves up in front of PW1’s car to force him to stop and at that time there were no other persons or anything else to obstruct his observation of the attackers. The robbers were not camouflaged and the one who had the fake pistol, whom PW1 stated to be the appellant herein, got up close and personal with PW1. He carried out a bodily search on PW1, as they stood face to face, and when he found the wallet, he removed the Kshs.5,000/= therefrom and returned the wallet to PW1.

It is PW1’s testimony that he followed the three men for some 200 metres before they entered into the road to obstruct and rob him and that he followed them for another 200 metres in his car, before he came upon members of the public and shouted for help. According to PW1 the appellant dropped the money and the fake pistol as he ran, but PW1 did not tarry to pick them up as he was intent on catching the appellant. The fake pistol was recovered and laid beside the appellant after he was arrested but the money was not recovered. PW1 denied that he hit the appellant with his car before he was arrested.

We must however observe once again, as we have done on numerous other occasions, that in a criminal trial the burden of proof rests upon the prosecution without shifting. The appellant is under no obligation to explain his innocence or at all. The trial court must therefore desist from using language which seems to shift that burden to the accused person by making such statements as was made herein that is:

“Although he claimed to have been hit by PW1’s vehicle he did not bother to report the accident to the police.”

The learned trial magistrate considered the appellant’s defence and rejected it, and we too find that it did not cast any reasonable doubt on the prosecution case. We considered it in the context of the rest of the evidence on record and found that it places him at the scene of the robbery at the material time and that in light of all the evidence on record it is difficult to accept his version in which he states that PW1 framed him just because he had hit him with his car.

We considered the import of the evidence of PW1, that the weapon used against him was a fake firearm. This evidence was corroborated by PW2, the Arresting Officer who stated that the weapon recovered from the appellant at the time of arrest was indeed an imitation firearm. Section 34(2) of the Firearm Act, Cap 114 Laws of Kenya provides that:

“A firearm or imitation firearm shall, notwithstanding that it is not loaded or is otherwise incapable of discharging any shot, bullet or other missile, be deemed to be a dangerous weapon or instrument for the purposes of the Penal Code.”

It therefore matters not that the appellant wielded an imitation firearm, and that it was not capable of discharging a missile. For the purposes of the Penal Code under which the appellant was charged, it is deemed to be a dangerous weapon.

Findings

After a careful analysis of the evidence on record we find that the appellant was properly identified and that his defence did not cast any reasonable doubt on the prosecution case. We also find that both the charge sheet and the evidence tendered in court showed that during the robbery the offender was armed with a dangerous and offensive weapon to wit a pistol, and was in company with two other persons, although they did not strike or wound PW1. The particulars of the charge sheet were therefore proved and the ingredients of Section 296(2) of the Penal Code were satisfied in two aspects, even though satisfaction of any one of the three ingredients would have sufficed.

Conclusion

We are satisfied that the appellant was not prejudiced in any way on account of the language used during the proceedings. We have also subjected the evidence in this case to the test in the Maitanyi case and find that no doubt exists in our minds as to the correctness of the identification of the appellant. We therefore find that the appellant was properly convicted, for the offence of robbery with violence contrary toSection 296(2) of the Penal Code and was also properly sentenced.

The upshot of the foregoing is that the appeal is lacking in merit and is dismissed in its entirety.

SIGNED DATEDandDELIVEREDin open court this 11thday of November 2013.

MUMBI NGUGI L. A. ACHODE

JUDGE JUDGE