[2014] KEHC 3974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 136 OF 2009

JAMES MWANGI KINYUA...................... APPELLANT

VERSUS

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

(An Appeal arising from the conviction and sentence imposed by Hon. Ndungu H.N., Senior Principal Magistrate Nanyuki in Criminal Case No. 2421 of 2008)

JUDGMENT

The Appellant JAMES MWANGI KINYUA was charged with three counts of Robbery with violence contrary to section 296(2) of the Penal code and an alternative charge of handling stolen goods contrary to section 322(2) of the Penal code.

He pleaded not guilty, was tried, convicted of the three counts of robbery with violence and sentenced to death on the 1st count with the other two counts being held in abeyance.

Being aggrieved by the said conviction and sentence he filed this appeal and raised four grounds of appeal to the effect that h was convicted on reliance of a single identifying witness, vital witnesses were never called. The trial magistrate did not consider the appellant's defence and that the prosecution's case was not proved beyond reasonable doubt.

When the appeal came up for hearing before us the appellant who was unrepresented filed an amended memorandum of appeal and written submissions which he relied upon while Mr. Cheboi appeared for the state and opposed the appeal.

In the amended memorandum of appeal the appellant raised the following grounds:-

a) He was not properly identified.

b) The charge sheet was not supported by the evidence tendered.

c) The appellant's defence was not considered.

SUBMISSIONS

It was submitted by the appellant that the prevailing circumstances and conditions during the attack would not have provided an opportunity to PW 1 the only identifying witness to make any meaningful identification. It was further submitted that PW 1's evidence was concluded by that of PW 6. It was further submitted that the charge sheet did not mention any weapon being used.

It was further submitted that those who arrested the appellant and allegedly made recovery were never called and that there was contradiction between the evidence of PW 1 and PW 4 and that the prosecution only looked at the members of the public who arrested the appellant because that evidence would have been addressed.

It was further submitted that the Appellant's constitutional rights to fair trial were violated in that he applied hat PW 4 be recalled for further cross examination but that was not done. It was further submitted that the appellant's defence was never considered contrary to section 169(1) of CPC.

Mr.Cheboi for the state submitted that the appellant was properly identified by PW 6 after he had been arrested by members of the public and that the trial court warned itself in convicting on the evidence of a single identifying witness. On the issue of the charge sheet it was submitted that the same was curable under the provisions of Section 382 of CPC.

It was further submitted that inside the appellant's inner wear $230, Kshs.1650/-, BBK ATM, Advise slip dated 27/10/2008 were recovered and PW 3 was able to identify the same as his. It was submitted that the appellant offered no explanation and therefore the doctrine of recent possession is applicable. It was submitted that since the appellant offered unsworn testimony his defence was never tested but the court rightly dismissed the same.

It was submitted that the appellant made his application to recall PW 4 but the same was not done which was a mistake on the part of the trial magistrate but that the same was curable under section 382 of CPC. It was further submitted that section 183 of Evidence Act does not require the prosecution to call any number of witnesses.

This being a first appeal this court is required to reevaluate the evidence tendered before the trial court afresh and to come to its own conclusion on the same though taking into account the fact that it did not have the advantage of seeing and hearing witnesses as the trial court.

It was PW 1 ANTHONY RADDELL'S case that he was from UK on a safari when they decided to walk to Lenana caves and as they came out their guide recognised six people whom he spoke to. On the way to the lodge two men grabbed their guide while one of the remaining four attacked him causing him to lose consciousness and robbed him of goods worth Kshs.223,000/-. PW 2 SHARON JANNIES testified on how they were attacked by the same group and when they reached the Bantu lodge they found the appellant having been arrested. This evidence was corroborated by PW 3 MARK RICHARD JENNES.

PW 4 PC DOUGLAS MUTHINJA evidence was that he proceeded to Bantu lodge where he found the appellant having been arrested by members of the public and took him to Naromoru police station where a thorough search on him was conducted and inside his inner wear $230, Kshs,1650/-, a BBK ATM Advice slip withdrawal done at Narok were recovered and confirmed to be those of PW 3.

PW 6 CYRUS MAINA MUNYIRI testified that he had seen the appellant amongst those who attacked him together with his guests and that during the attack he had known one of the attackers called “Nganisha” who was not arrested. It was his evidence under cross examination that the appellant emerged from the bush with a rungu which he used to hit PW 6.

When put on his defence the appellant gave unsworn evidence and stated that on 30th October 2008 he left his home in Kirinyaga and went to Burget when he met eight me who asked him where he had come from to which he explained that he had come from Kirinyaga. They told him that they were looking for suspects who had attacked some people. He was taken inside the bush where they found the injured person who were unable to identify him.

From the proceedings, memorandum of appeal and submissions herein we have identified the following issues for determination;-

a) Whether the appellant was propery identified.

b) Whether the charge sheet was defective.

c) Whether the appellant was prejudiced by failure to recall PW 4 and whether his right to fair trial was breached.

d) Whether the prosecution's case against the appellant was proved beyond reasonable doubt.

On the issue of identification the evidence of PW 6 is very clear that he had seen the appellant among the group of six people together with one who he had known by the name “Nganisha”. The attack was in broad day light and we are therefore satisfied that there was no mistaken identification of the appellant.

It is also clear that the appellant was convicted on the doctrine of recent possession. The evidence of PW 4 is that at Naromoru police station a through search was conducted on the appellant and inside his inner wear US$230, Kshs.1650/- and BBK ATM Advice slip were recovered which items were identified by Mark Jennies as having been stolen from him. From his defence the appellant only said that he was searched and nothing was found. On the authority of MUTURI V R [2004] 1 KLR we find that the appellant was properly convicted of the offence of robbery with violence.

On the issue of defective charge sheet we are in agreement with Mr. Cheboi for the state that the omission of the word offensive weapon was not fatal to the charge sheet since that is only one of the ingredients of the charge of robbery with violence.

It is clear that the appellant had asked for PW 4 to be recalled since he had not been supplied with his statement and the trial magistrate made a ruling that PW 4 be recalled on the next hearing date and from the court's records it is clear that the said witness was never recalled. In this we find that the appellant's right to fair trial was violated but are of the considered view that it is a breach that should not nullify the proceedings herein as at the time when the appellant requested for recall of the said witness he had substantially cross examined the same.

We therefore find that the conviction of the appellant herein was safe and therefore find no merit on the appeal herein which we hereby dismiss.

Dated and delivered at Nyeri this 4th day of July 2014.

J. WAKIAGA J. NGAAH

JUDGEJUDGE