[2004] KEHC 2554 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL APPEAL NO. 58 OF 2002

JAMES MURIUKI KAMAU……………………..….………………….APPELLANT

Versus

REPUBLIC……………………………………………….…………….RESPONDENT

CRIMINAL APPEAL NO. 60 OF 2002

FRANCIS MAINA WERU……………………………………………….APPELLANT

Versus

REPUBLIC……………………………………………………..……….RESPONDENT

(Appeal against judgment by Mrs. M. R. Gitonga,

then Senior Resident Magistrate, dated 13th

February 2002, In the Chief Magistrate’s Court at

Nyeri, Criminal Case No. 533 of 2001).

JUDGMENT

The two Appellants jointly with one Charles Nderitu Gakuru who died after

conviction and sentence, were charged with the offence of robbery with violence contrary

to Section 296 (2) of the Penal Code. It was alleged that on 11th February 2001 at Rititi

Trading Centre in Nyeri District, the three accused persons jointly with others not before

court, while armed with dangerous or offensive weapons, namely Toy pistol, pangas, Iron

bars, simis and clubs, robbed Lydia Gathigia Nyamu, one B/W T.V. make Sanyo S/No.

192622, one radio cassette make Phillips S/No. 700503, One Afrigas Cylinder, and

Sewing Machine Head make Singer S/No. 054057, and a Thermos Flask all valued at

Sh.28,300/= and that they used actual violence to the said Lydia Gathigia Nyamu during

that robbery.

Each of the two Appellants faced a separate count alleging handling of stolen

goods contrary to Section 322 (2) of the Penal Code. But all the Accused persons were

convicted of the offence of robbery. We consolidated the two appeals for hearing the

Appellants prosecuting their appeals in persons. The Provincial State Counsel, Mr.

Orinda, opposed the appeals.

We have found it difficult to see coherence or consistency in parts of the

prosecution’s case. But we have been able to see that Lydia Gathigia Nyamu, PW1, was

in her house at about 9. 00p.m. with a small son when she saw two men at the door, one of

them wearing something on his face. She greeted them and when she inquired from them

what they wanted, one of them pulled out what looked like a pistol and pointed it at her.

She panicked and started screaming running towards her bedroom. She was hit on the

head with an object and was cut on her hand. She fell down unconscious and only gained

consciousness when in Tumutumu Hospital admitted. She was subsequently taken to

Aga Khan Hospital and Kenyatta National Hospital for further treatment. Although there

was light from electricity in her house, she had neither identified any of her attackers nor

noticed them take anything from her house. It was while she was in hospital that she

learned that those who attacked her had carried away some of her things from her house

and three suspects had been arrested, one of them her former employee.

Michael Mumenya Nyamu was P.W.1’s son who was with her in the house at the

time of the attack. His age was not revealed and gave evidence as P.W.2 on oath the trial

magistrate recording that the witness could do so. The robbers do not appear to have

been bothered by this boy’s presence in the house. His evidence is like that of his mother

concerning the incident in the house. But unlike his mother, this witness saw the items

mentioned in the charge being taken from his parent’s house by the robbers. He did not

identify any of the robbers including Accused two said to have been his parent’s

employee previously and could not therefore pick anybody on the identification parade

although the police, according to his evidence, had told him to go and pick Accused two.

P.W.3, Purity Mwangi Maina, told the court she was also in the house of P.W.1 at

the time of the attack although neither P.W.1 nor P.W.2 had mentioned P.W.3 and her

presence. She said she was also in the kitchen. She heard P.W.1 screaming in the sitting

room and on going to check she was accosted by two men who made her lie down where

P.W.1 was lying. She did not refer to the presence of P.W.2 and the fact that P.W.1 had

been beaten and was unconscious. Like P.W.2 she saw the items mentioned in the charge

being taken by the attackers. Using electricity light which was in the house, P.W.3 was

able to identify the person who had hurt her. She picked him at the identification parade.

He was the Second Appellant and P.W.3 told the court that she was able to identify him

because he hurt her, held her and she noted his face and appearance. But she said some

members of the parade were tall others short, some dark others light. That contradicted

what P.W.12 told the court. After being injured, she was treated at Tumutumu hospital

and discharged.

Ephraim Nyamu Weru was the husband of P.W.1. He gave evidence as P.W.4

stating that he was away when the robbers attacked. He returned home to find the police

and members of the public present. He was informed of the robbery and of the fact that

his wife had been injured and taken to Tumutumu hospital unconscious. At home he

noticed the items stolen. He said that on 26th February, 2001 he was called to Karatina

Police Station where he was shown stolen and recovered items from his house and he

identified them. He added that he was present when accused persons were arrested

including Accused two who had been their employee and that he was also present when

the exhibits were recovered. He went on to say what was recovered from each Appellant.

The prosecutor ended the evidence of this witness in Chief without making him

say how and where he was present when accused persons were arrested in his presence

and exhibits recovered in his evidence. His earlier statement was that he was called to

Karatina Police Station where he was shown recovered items. How did he again come to

see them being recovered? It is during cross-examination that this witness tried to show

how he was present. The prosecutor ought to have done better than this if he knew the

essential ingredients he was supposed to prove in this case. What came out was that

P.W.4’s evidence during cross-examination was at variance with his evidence in chief

and we cannot know which part of his evidence to follow. Noted is also the date of

handling stolen goods in the handling counts. The date is 18th February, 2001 yet

P.W.4’s date is 26th February 2001.

When it comes to the evidence of P.W.5 Justus Maina Kengi and P.W.6 James

Muthee Munga, both are talking about one incident, sale of the T.V. to P.W.6 by the First

Appellant. But their evidence was left with some inconsistencies. Each one of them was

at his place of work. P.W.5 at Mt. Kenya Butchery. P.W.6 at Quality Butchery Karatina.

It is not clarified whether both butcheries were in Karatina Town. But even if they were,

it was not clarified whether they were together and how P.W.5 in his butchery knew what

P.W.6 was doing in his butchery concerning the T.V.

P.W.5 referred to P.W.6 as his colleague without clarification how the two were

colleagues. From their evidence, the two appear to have been together from the

beginning to the end. But P.W.5 said that the First Appellant wanted to sell the T.V. to

bail out a relative who was in remand, while P.W.6 told the Court that the First Appellant

wanted to sell the T.V. because someone was sick.

P.W.6 said the First Appellant went to him on 12th February 2001 and that is the

date P.W.5 also mentioned. But in the end P.W.6 said that the police who recovered the

T.V. went to him at 2. 00 a.m. on 8th February 2001. He said it was the First Appellant

who took the Police to him.

P.W.5 first said that the First Appellant went to them with the T.V. But at the end

of his evidence in chief, P.W.5 said that the First Appellant went and brought the T.V.

The prosecutor, Inspector Muriuki, ought to have seen all those discrepancies to

remove or avoid them for that was one of the reasons why he was doing that job. He

failed.

In any case, it seems to us that what P.W.5 and P.W.6 were saying in the court

was that the First Appellant took the T.V. to both of them and eventually sold the T.V. to

P.W.6 for Sh.3000/= with P.W.5 acting as a witness and that the First Appellant gave

them a receipt with the name Fredrick Maina Wachira when they knew him as a radio

repairer James Muriuki Kamau whose name is printed on his shop. They recorded an

agreement at the back of that receipt and signed it retaining the T.V. until the police

recovered the T.V. when the police went with the First Appellant under arrest.

Jesse Ndegwa Githaiga, a mechanic owning a garage gave evidence as P.W.7. He

told the Court that his motor vehicle Reg. No. KQT 608 was hired by the First Appellant

to a place called Kanyama where the First Appellant said his house was. Apparently the

motor vehicle which had a battery problem did not reach the house but the First

Appellant whom P.W.7 knew before that date and the Second Appellant whom P.W. 7

had not known emerged jointly carrying a gas cylinder in a sack. They put the cylinder in

the motor vehicle’s boot and P.W.7 drove the vehicle with the two men and the cylinder

on board, back to his garage in Karatina town to repair the cylinder. There was a part

which was spoilt. The battery was also down. P.W.7 took it to Karatina. The gas

cylinder was repaired and collected the following day by the First Appellant assisted by

P.W.8, Douglas Gichoki Mweiga The manner in which the gas cylinder was handled

from P.W.7’s garage back to the First Appellant is not clear as suspicion seems to have

been in the air.

Police Constable Joseph Ndirangu, P.W.10, was the arresting officer. Acting on

information from an informer and in company of other police officers, they went to

Karatina Town and arrested P.W.7 as a taxi driver who had allegedly carried the stolen

items. P.W.7 led them to the Second Appellant. The Second Appellant was arrested and

a radio, a rain coat similar to those worn by police, a toy pistol and a plain receipt

recovered. That was on 18th February 2001.

The Second Appellant led the Police to the house of the First Appellant who was

found and arrested and a gas cylinder and a sewing machine head recovered. The

Appellants were taken to Karatina Police Station.

The Second Appellant led the Police to the home of Accused two who was also

arrested before all the suspects were taken to the Police Station.

On 19th February 2001 the First Appellant led the Police to a butchery where the

First Appellant said he had sold one T.V. set. The said T. V. set was recovered and the

receipt at the back of which there was the sale agreement bearing names Fredrick Maina

Wachira and James Kanake and the purchase price of Shs3000/=.

In their defence, each Appellant denied that he was one of the robbers. They

mostly dwelt on their respective arrests. The First Appellant told the court that he did not

rob anyone. He said that on 16th February 2001 he was in his shop where he used to sell

clothes when Accused two went to the shop, selected some clothes he wanted to buy but

said he did not have cash and would sell a gas cylinder to get the money. He asked the

First Appellant to keep the clothes for him and that was done. The following day

Accused two took the gas cylinder to the First Appellant’s shop saying he had failed to

find a buyer. The evidence is not clear although the First Appellant made his defence on

oath. It would appear that the First Appellant was still having the clothes claimed to

have been selected by Accused two and was also having the gas cylinder when the Police

arrested him and recovered the gas cylinder.

We note that during the cross-examination of P.W.7, while it was the Second

Appellant’s case that he was just assisting the First Appellant to carry the gas cylinder, it

was the First Appellant’s case that he had the gas cylinder because he had attached it for

a debt.

In his unsworn defence therefore the Second Appellant did not say anything about

the gas cylinder. He talked about his arrest by the Police at his home and taken to the

Police Station and how the Police treated him. Generally his defence was that the house

in which he was found when arrested, though in his home, did not belong to him.

The learned trial magistrate recorded the defence of every accused person. But

before us in these appeals, each Appellant has told us that what he said in his defence was

not recorded. The correct position is that the defence was recorded but when it was

considered in the judgment, the learned magistrate rejected the defence. Different name

in the receipt issued to P.W.6 when he bought the T.V., the defence, the fact that

recoveries and arrests were effected seven days after the robbery – whether in the

circumstances there could be recent possession, were all considered by the trial

magistrate.

The questioning of the evidence of P.W.5, P.W.6 and P.W.7 by the Appellants

was not done before the trial magistrate. Those witnesses were cross-examined by the

Appellants who never challenged the witnesses to show that they were not credible

witnesses.

As we indicated at the beginning, coherence or consistency lacked in some

respects of the evidence adduced. It now emerges that the problem was not only on the

side of the prosecution. It was also on the side of the Appellants. In the circumstances

therefore and doing our best, we come to the conclusion that there was sufficient

evidence to sustain conviction of the Appellants on the following grounds:-

Firstly, robbery as alleged in the charge was proved. P.W.1 and P.W.3 were

injured and the former lost consciousness and spent several days admitted in hospitals for

treatment. During the incident, the attackers were more than one, armed with offensive

weapons and robbed the items mentioned in the main charge.

Secondly, there was a Charge and Cautionary Statement recorded from Accused

two. That statement incriminated Accused two and the Second Appellant in the robbery.

The statement was admitted in the evidence without objection. Accused two died after

conviction and sentence. The statement remains against the Second Appellant although it

is evidence of the weakest nature against him. But the Second Appellant was identified

by P.W.3 at the scene of the robbery and P.W.3 was able later to pick him at the police

identification parade.

Thirdly, the evidence of P.W.5 and P.W.6 relating to sale of a T.V. by the First

Appellant and evidence of P.W.7 and P.W.8 relating to hiring of his motor vehicle, which

transported the gas cylinder which he repaired and was returned to the First Appellant,

the hirer of P.W.7’s motor vehicle.

Fourthly, evidence of recoveries by P.W.10 the arresting officer. From the First

Appellant were recovered the gas cylinder, a sewing machine head and the T.V. he had

sold to P.W.6. From the Second Appellant were recovered a radio cassette Phillips

SN700503.

Fifthly, identification of recovered exhibits by P.W.1, P.W.2, P.W.3 and P.W.4.

From the totality of all that evidence, we are satisfied that the learned trial

magistrate was justified in rejecting the defence advanced by the Appellants. Their

conviction was proper and we find no good reason to interfere with any of the sentences.

Accordingly, we do hereby dismiss each of these two appeals.

Dated this 18th day of November 2004.

J. M. KHAMONI

JUDGE

H. M. OKWENGU

JUDGE