[2022] KEHC 1213 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION- MILIMANI

CRIMINAL APPEAL NO. 15 OF 2020

JAMES OKELLO.................................................................................................APPELLANT

VERSUS

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

(Being an Appeal arising from the original conviction in Criminal Case No. 52 of 2016at the

Chief Magistrates Court Nairobi by Hon. K. Cheruiyot –PM on 22nd February 2017)

JUDGMENT

1. James Okello, the appellant, was convicted and sentenced for the offence of robbery with violence contrary to Section 296(2) of the Penal Code. Particulars being that on the 5th day of January, 2016 along Kirinyaga Road in Nairobi within Nairobi County jointly with another not before court while armed with penknives and a syringe robbed off one Kelvin Kimani Njoroge of cash Kshs 900/- and a phone make Huawei all valued at Kshs 10,900/- and immediately before and immediately after the time of such robbery threatened to use actual violence to the said Kelvin Kimani Njoroge.

2. He did not appeal within the prescribed time hence sought leave of the court to institute the appeal which was granted.

3. The prosecution’s case was that on the 5th day of January 2016, in the afternoon, PW4 Milka Wanjiku sent her son PW1 Kelvin Kimani Njorogeto buy same items. While PW1 was walking along Kirinyaga road, he encountered some two (2) individuals who firmly shook his hand and one of them that he described as the “tall one” introduced himself as the chairman and asked him to give them something. He moved to the nearby shop and asked for change of Kshs. 200/- and gave Ksh. 50/-.

4. As he walked away the two individuals followed him and alleged that they would escort him to wherever he went; when he declined the offer, they removed a syringe with needle and penknife, and threatened him by pointing the same at him. Their action made him co-operate and they took him to an isolated place where rubbish was dumped. They ordered him to sit down and demanded for money. They threatened to beat him, searched his pockets and found Ksh. 700/- which they took and the tall individual ordered him to take his cellphone number. This compelled him to remove the phone from his pocket which they snatched from him. They threatened to use the syringe needle and knife on his person if he spoke to anyone as they walked back to the public area. They walked ahead of him, an act that gave him the opportunity to approach a man who was standing by the roadside. He complained to him and the man advised that he informs BodaBoda operators who could assist him. He did so, but when the Bodaboda operators pursued them, they fled. In the meantime he saw police officers in civilian clothes and he notified them. He was referred to the Police Station to make a formal report. He also went to Safaricom House to report so that his Mpesa account could be blocked.

5. In the meantime at about 3. 30 pm, PW4 received a call from her son’s number but the individual who communicated introduced himself as the City County Officer who had arrested his son for dropping rubbish on the street and was in the process of taking him to the Police Station and that he could be jailed. She advised that he takes him to the Police Station to enable her make arrangements of having him released. The person however asked her to send around Kshs. 1,500/- so that he could release him. She asked him to allow her to speak to her son and he switched off the phone. She decided to go to the Police Station and while on the way her assistant Njeri rang and told her that her son had reached the shop therefore she returned home.

6. A week later, on the 12th day of January 2016 at about 4. 30 pm as PW1 walked with a friend within town, near Kenya National Archives, he encountered the two (2) men. He recognized them having interacted with them for over one and a half hours. The tall one asked him whether he was still following them and crossed the road. His friend advised that he follows them so as not to lose their sight. He did so while PW 1 looked around for assistance. While at Khoja Mosque he spotted prison warders and reported to them. PW2 No. 374955, PW Bosco Mageru Ondigi and PW3 No. 34499, PW Godfrey Barasa who were on patrol assisted him by arresting the appellant and escorted him to Central Police Station. PW5 No. 65020 P.C. Onesmus Mutonga investigated the case and caused the appellant to be charged.

7. Upon being placed on his defence the appellant testified to have been arrested by two (2) Police Officers who handcuffed his hands and a complainant appeared with allegations that he had stolen from him. He defended himself by saying that he worked at Latema Road parking area with County Officers but they could not hear of it. Subsequently he was arraigned and charged.

8. The trial court considered evidence adduced and found that the complainant recognized the appellant as the person who robbed him. Hence the conviction.

9. Aggrieved, the appellant preferred the appeal on grounds that; the trial process was not fair and impartial as guaranteed by the Constitution; key ingredients of the offence of robbery with violence were not proved; identification in question was not positive; evidence relied on to link the appellant with the offence was weak and the mode of arrest was unjustified; inconsistences and contradictions on record were not resolved in favour of the appellant and no regard was given to the appellant’s defence that exonerated him from blame.

10. The appeal was canvassed through written submissions. It was urged by the appellant that his rights to fair trial under Article 50(2) (c) (j) (k) were breached when the prosecution introduced an additional witness during trial. He relied on the case of Christopher Njeru Githinji Vs. Republic (2020) where the court emphasized the need of issuance of witness statements. That the key ingredients of the offence of robbery with violence were not established which made the conviction manifestly unsafe.

11. On the question of identification he argued that it was not positive as circumstances were not favourable and the sequence of events as described by the complainant were disputable. He faulted the complainant for not reporting the incident at the earliest opportunity as advised and having not given the police the description of the persons.

12. The appellant lamented that the mode of arrest was unjustified and no recovery was made. That without evidence of tangible data from the mobile subscriber it could not be proved that he had the victim’s mobile phone. He pointed out contradictions in evidence of witnesses as to whether a report was made to the police and that his defence was not analyzed in light of the totality of evidence.

13. The Respondent opposed the appeal. It argued that theingredients of the offence were established as two (2) elements of the offence as set out in the case of Juma Mohamed Genzi and 3 others Vs. Republic, Cr. App. No. 275 of 2002were proved as the complainant was accosted by two (2) men who were armed with a syringe and penknife which were dangerous and offensive weapons.

14. On the question of identification it stated that the incidentoccurred at 2. 00 pm, the complainant interacted with the individuals for one and half hours and when he saw them on 12th January, the tall one smiled and asked him whether he was still looking for him and he recognized him.

15. This being a first appellate court, it is obligated to reappraise andre-evaluate evidence adduced at trial and reach its independent conclusions. In the case of Okeno Vs. Republic (1972) EA 32it was stated that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. ”

16. The appellant complains that his rights were violated as theprosecution was allowed to introduce a new witness who had not recorded a statement, in the course of trial. A perusal of the lower court record shows that the prosecution sought an adjournment so as to call a witness, Margaret Njeri, who had a sick child and had not recorded a statement, an opportunity that they were accorded. However, the witness was not availed to testify.

17. Article 50(2) (b) (c) (j) of the Constitution provides thus:

2. Every accused person has the right to a fair trial, which includes the right-

b. To be informed of the charge, with sufficient detail to answer it;

c. To have adequate time and facilities to prepare a defence;

j. To be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

18. It is a requirement of the law that an accused person must befurnished with all evidence to be adduced against him at trial. He ought to be afforded adequate facilities and time to prepare for his defence. Disclosure of evidence against the accused should possibly be done during the pre-trial stage.

19. In the case of Thomas Patrick Cholmondeley Vs. Republic(2008) eKLR the Court of Appeal stated that:

“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under Section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.”

20. It has however been appreciated that the duty to discloseevidence is an ongoing process as long as the accused is given sufficient time to prepare for his defence and subject the witness to cross examination. In the case of Joseph Ndungu Kagiri Vs. Republic (2016) eKLR Mativo J. stated that:

“Article 50 (2) (j) provides for the right of the accused person to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence while sub-article (c)provides for the right of the accused to have adequate time and facilities to prepare his defence.”

21. The prosecution having not availed the witness, the rights of theaccused were not breached.

22. On the question of identification, evidence adduced was basedon visual identification. In the case of Wamunga Vs. Republic (1989) KLR 424 the court stated that:

“Where the only evidence against a defendant is the evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

23. In the case of Republic Vs. Turnbull & others (1976) 3 ALLER549 the court drew special attention to questions to be asked when it comes to identification of a perpetrator of the offence by a victim. It stated thus:

“ The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often, if only occasionally, had he any special reason for remembering the accused? How much time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seenby them as his actual appearance?....... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

24. In the case ofMwaura Vs. Republic (1987) KLR 645 the courtheld that:

“In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”.

25. The complainant herein was a single witness to the act inquestion. The trial court correctly warned itself of the danger of relying on evidence of a single witness in convicting the appellant. The court considered what was stated in the case of Maitanyi Vs. Republic (1986) KLR 198 at 200where the court stated that:

“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error”.

26. The offence occurred in broad daylight and the complainant hadclose contact with the assailants. He had a conversation with the individuals when they led him to a secluded site where rubbish was dumped. The trial court observed the demeanor of the complainant prior to relying on his evidence. The complainant testified to have spent ample time with the two (2) individuals which made him remember them the second time he saw them. Right at the outset the complainant described the appellant as the tall man. He was able to notice his distinct features as compared to his mate who was not arrested.

27. It is argued that ingredients of the offence were not proved. Theoffence of robbery with violence is created by Section 295 of the penal code which provides thus:

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

The penal part of it is captured by Section 296 (2) of the Penal Code which provides thus:

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

28. The case ofOluoch Vs. Republic (1985) KLR captured whatconstitutes ingredients of the offence. The court delivered itself thus:

“… Robbery with violence is committed in any of the following circumstances:

a. The offender is armed with any dangerous andoffensive weapon or instrument; or

b. The offender is armed with any dangerous andoffensive weapon or instrument; or

c. At or immediately before or immediately afterthe time of the robbery, the offender wounds, beats, strikes, or uses other personal violence to any person.”

29. And it was clarified that one of the elements is sufficient to provethe offence. This was stated in the case of Dima Denge Dima & others Vs. Republic Cr. App. No. 300 of 2007as follows; “…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”

30. The appellant was in company of another. What enabled themto lead the complainant to a secluded place where the threat to use the syringe needle and penknife on the person of the complainant. These were items that could cause serious bodily injury to a person hence dangerous instruments. Failure to avail the mobile subscriber logs and failure to recover what was stolen from the appellant was inconsequential.

31. On the question of inconsistences, the argument relates to whomade the report to the police. It is stated that PW4 stated that the complainant went to report the incident while the complainant stated that his father is the one who went to report the matter. In the case ofPhilip Nzaka WatuVs. Republic (2016) e KLR it was stated that:

“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question...”

32. In the case of Twehangane Alfred Vs. Uganda Crim. App. No. 139 of 2001 (2003) UGCA6 it was stated that:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

33. It was clarified that the complainant went to report to safaricomso that the Mpesa account could be blocked while his father made a formal report to the police. The discrepancy alleged was not fatal to the prosecution’s case.

34. The defence put up by the appellant was considered by the trialcourt which gave reasons for disregarding it. The arrest was effected by Prison Warders who were on patrol duties when they were approached by the complainant, a person not known to them. The case against the appellant was therefore proved to the required standard.

35. From the foregoing, the appeal herein lacks merit. Accordingly, it is dismissed in it’s entirety.

36. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF MARCH, 2022

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

Appellant

Ms. Ntabo for the state/ODPP

Court Assistant – Mutai