[2022] KEHC 10281 (KLR)

Jason v Republic (Criminal Appeal E044 of 2021) [2022] KEHC 10281 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10281 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E044 of 2021

LM Njuguna, J

May 18, 2022

Between

Samuel Njue Jason

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein was charged with three counts as follows: Count 1: robbery contrary to section 295 as read with section 296 (2) of the Penal Code; on the 2nd Count: robbery contrary to section 295 as read with section 296(2) of the Penal Code and an alternative charge of handling stolen goods contrary to section 322(1) (2) of the Penal Codeand the 3rd Count being in possession of narcotic drugs contrary to section 3(1) as read with section 3 (i) (a) of the Narcotics and Psychotropic Substances Control Act No. 4 of 1994. He was acquitted on all the other Counts but was convicted of the 1st Count of robbery contrary to section 295 as read with section 296(2) of the Penal Codeand thereafter sentenced to serve Ten (10) years imprisonment.

2. It is this conviction and sentence which necessitated the appeal herein and which was instituted by way of petition of appeal dated 19. 11. 2021 in which he has set out seven (7) grounds of appeal.

3. The appeal was disposed off by way of written submissions and wherein the appellant submitted that he was charged with the offence of robbery of two different people while armed with the same weapon at one given time which according to him led to the charge sheet being defective. It was his case that the alleged stolen items never had any labels or markings to determine the issue of ownership and further, the items were never positively identified. In buttressing his case, the appellant argued that the amount that PW1 stated as stolen was different in that at some point she gives a figure of Kshs.4,000/= and another figure of Kshs. 2,500/=.

4. It was his case that PW1 neither described nor indicated the make of her phone and further, no IMEI number was furnished to the police to enable them positively identify the phone in question as that of PW1. He submitted that the prosecution’s case was never proved as it should be, as the same was riddled with contradictions and inconsistencies. He further submitted that his rights were violated given that he was arrested on 28. 08. 2020 but produced before the court on 02. 09. 2020. In the end, he urged this court to quash the conviction and set aside the sentence.

5. The court has considered the grounds of appeal and the written submissions by the appellant herein and this being the first appellate court, its duty is stipulated in Okeno v Republic[1972] EA 32 which is to subject the evidence on record to a fresh and exhaustive examination so as to arrive at an independent decision but giving allowance for the fact that the court did not have the advantage of hearing and seeing the witnesses testify. The issue for determination is whether the appeal herein is merited.

6. As was held in Stephen Nguli Mulili v Republic [2014] eKLR:“It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa v R, [2013] eKLR.”

7. The appellant was convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code wherein he was convicted and sentenced to 10 years imprisonment. I therefore reproduce hereunder the entire section 296(2) as follows:296 (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.

8. In Johana Ndungu v Republic[1996] eKLR, it was said: The court stated:“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section: 1. If the offender is armed with any dangerous or offensive weapon or instrument, or

2. If he is in company with one or more other person or persons, or

3. If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.

9. From the trial court’s record, the appellant was charged with robbery contrary to section 295 as read with section 296(2) of the Penal Code. Though there was that small error, it is evident from the evidence adduced that the prosecution proved the offence of robbery with violence. It is also clear that the particulars of the charge as stated in the charge sheet were read to the appellant and the same relates to the offence of robbery with violence and not simple robbery. In my considered view, the appellant did not suffer any prejudice as a result of the error made in the charge sheet.

10. The appellant submitted that the charge sheet was defective given that he allegedly robbed PW1 and one Edith Wanyaga of cash at one particular place. From the charge sheet, it is stated that there were two complainants who allegedly had been robbed by the appellant herein. The appellant was of the view that the prosecution could have availed the two complainants instead of only one. In the end, it was strongly viewed that the charge sheet became defective and as such could not hold his conviction. Section 134 of the Criminal Procedure Code sets out how charge sheets are to be framed.

11. In the case of S C N v Republic [2018] eKLR which quoted the Court of Appeal in Peter Ngure Mwangi v Republic [2014] eKLR which quoted the Isaac Omambia case with approval, the court stated;“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, and Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in Yongo v R, [198] eKLR that:“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:(i)when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,(ii)When for such reason it does not accord with the evidence given at the trial.”

12. Similarly, in Samuel Kilonzo Musau v Republic, Cr App. No. 153 of 2013, the Court of Appeal declined to interfere with a conviction where the appellant was charged with “defilement contrary to section 8(1) (2) of the Sexual Offences Act” instead of “defilement contrary to section 8(1) as read with section (4) of the Sexual Offences Act”, after finding that he had suffered no prejudice. In light of the above, the appellant failed to show how he was prejudiced and in any event he was acquitted in count II where the complainant failed to come to court to testify.

13. Regarding the contradictory evidence, the appellant stated that the prosecution’s evidence was contradictory and inconsistent thus discrediting its evidence. It is trite that, a court should weigh the nature and strength of the alleged contradictory evidence against the entire evidence tendered as a whole before dismissing a case. It is not every contradiction that calls for an acquittal. It will depend on the magnitude of the contradiction against delivery of substantive justice. [See Leonard Kipkemoi v Republic[2018] eKLR; Peter Ngure Mwangi v Republic [2014] eKLR].

14. From the evidence on record, it is evident that the amount of money that was reported stolen as indicated in the charge sheet was not the same as that on record. Having considered the appellant’s submissions and the evidence adduced at the lower court, I do not find any serious contradiction in the prosecution witnesses’ evidence that would weaken the probative value of the evidence tendered by the prosecution regarding the occurrence of the robbery in question. Although no clear explanation was given regarding the discrepancy in the amount of money, that alone cannot negate the fact that a robbery took place.

15. On recognition and identification, the appellant submitted that this was a framed up case against him. The court in the case of Leonard Kipkemoi v Republic (supra) while dealing with the issue of recognition stated that;“The factors to be considered with respect to recognition as set out in R v Turnbull & Others (1976) 3 ALL ER 549 must always be borne in mind when a court is dealing with the question of identification. The court in that case stated as follows:“... 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 long 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 seen by them and his actual appearance?... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

16. From the evidence, PW1 stated that on 21. 08. 2020 at around 11. 30 p.m., she heard the door being hit with a stone and a person got in.That he switched on the light and saw the intruder holding a panga and a knife. That upon describing the intruder to the cleaner in the hotel where she works, the cleaner told her that the suspect could be identified. That after seeking for assistance from the police who went to the suspect’s house, she identified the suspect and the items that had been stolen. Her itel phone was recovered in the appellant’s house and when she put her P.I.N., the phone worked. She stated that she managed to identify the grill, knives, pan and the panga. On cross examination, PW1 confirmed that the appellant was in the habit of eating from the hotel where she works and further that, she saw his face when the appellant entered her house during the robbery.

17. The importance of the first report was made out in the case Tekerali Son of Korongozi & others v R [1952] EACA 259, cited by the appellant in which the Court of Appeal held that:Evidence of the first report by the complainant to a person in authority are important as it often provides a good test by which the truth and accuracy of the subsequent statements may be gauged and provide a safeguard against later embellishments or the deliberately made-up case. Truth will always come out in a first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.

18. Having interrogated the circumstances under which the identification was made, I find that the circumstances favoured positive identification of the appellant and therefore, the ground of appeal is without basis.

19. Further, the appellant submitted that his defence was never considered. The trial magistrate in her judgment considered the defence by the appellant in it’s totality and in the end, she was satisfied that the prosecution proved its case beyond any reasonable doubt. I have looked at the defence that the appellant tendered before the trial court. His main defence was that his items were stolen from him. On cross examination, he stated that he was at home on the material day and that his landlord could verify the same but nonetheless, he never called any witness to support his claim. In my view, the appellant’s evidence could not dislodge that of the prosecution since the charge against him was soundly proved.

20. On the sentence, the sentence imposed on him was within the discretionary powers of the court. As such, this court cannot interfere with the exercise of the said discretion as the appellant did not justify the interference. He did not prove that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. [See R v Shershewsky, (192) C.C.a. 28 T.L.R; Ogolla s/o Owuor v R(1954) 21 270].

21. In view of the foregoing, I dismiss the appeal and uphold the decision of the trial court

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE..............................for the Appellant.............................for the Respondent