[2017] KEHC 9792 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.60 OF 2016

(An Appeal arising out of the conviction and sentence of Hon. Emily Nafula Nyongesa – SRM delivered on 24th February 2016 in Makadara CMC. CR. Case No.632 of 2014)

JEREMIAH MAINA WAMBUI....APPELLANT

VERSUS

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

JUDGMENT

The Appellant, Jeremiah Maina Wambui was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 18th January 2014 at [particulars withheld] in Nairobi County, the Appellant, jointly with others not before court, while armed with dangerous weapons namely axes and pangas, robbed J N C of one Laptop, Laptop bag, Samsung mobile phone, Huawei mobile phone (valued at Kshs.42,000/-) and cash of Kshs.10,800/- and immediately after the time of such robbery, wounded the said J N C (the complainant). The Appellant was further charged with rape contrary to Section 3(1) as read with Section 3(3) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally and unlawfully had sexual intercourse with L W N without her consent. The Appellant was also charged with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the offence were that on the same day and in the same place, jointly with others not before court, the Appellant unlawfully assaulted M W W thereby occasioning her actual bodily harm. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, the Appellant was convicted of the 1st count of robbery with violence contrary to Section 296(2) of the Penal Code. He was however acquitted of the other counts. He was sentenced to death. He was aggrieved by his conviction and sentence and has appealed to this court.

In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that he had been convicted on the basis of evidence of identification that was made in difficult circumstances that did not favour positive identification. He faulted the trial magistrate for disregarding his defence and thereby arriving at erroneous decision that he was guilty as charged. He accused the trial magistrate for shifting the burden of proof and thereby failing to reach the correct finding that the prosecution had failed to discharge its burden of proof to establish his guilt to the required standard of proof. He faulted the trial magistrate for relying on inconsistent and contradictory evidence of prosecution witnesses to convict him. In the premises therefore, the Appellant urged the court to allow the appeal, quash his conviction and set aside the sentence that was imposed on him.

During the hearing of the appeal, the Appellant presented to court written submission in support of his appeal. He also made oral submission to the effect that the prosecution had failed to establish, to the required standard of proof, that he had been properly identified by the victims of the robbery. He doubted that the evidence of identification that was adduced by the prosecution witnesses met the legal threshold. Ms. Sigei for the State opposed the appeal. She submitted that the prosecution had adduced sufficient evidence which connected the Appellant to the crime. The Appellant was properly identified by one of the victims of the robbery. The robbery took a sufficiently long time to enable the witness to be certain that she had identified the Appellant as one of the three robbers that robbed them. She urged the court to dismiss the appeal as it lacked merit.

The facts of this appeal are straight forward. The complainant in this case was at the material time a resident of [particulars withheld] in Kamulu area. On the material night of 18th January 2014 at about 12. 45 a.m., he was asleep in his house with his wife PW3 M W W. In another bedroom in the house, their daughter PW2 L W N was also asleep. According to their evidence, they were woken up by a bang on their kitchen door. They heard voices of people identifying themselves as thieves. They were ordered to open the door or else they would break down the door and gain access to the house. The complainant, PW2 and PW3 raised alarm seeking help from the neighbours. No one came to their rescue. The robbers gained access to the house. The complainant was hit on the head with an axe. PW2 and PW3 were raped by two of the robbers. They were robbed off cash and the items listed in the charge sheet. The stolen items were not recovered.

The complainant and PW3 testified that during the robbery ordeal they were not able to identify any of their assailants. PW2, however testified that during the rape ordeal, she was able to identify the Appellant as her assailant. This is what she said in her testimony:

“The suspect with me pulled me close to him and led me to the back of the house where there is a water tank and he ordered me to remove my shorts. There was bright moonlight outside so I saw the suspect pretty well…the said robber then went ahead and raped me as I was still fighting him...there was bright moonlight outside and we wrestled for about 10 minutes and I saw your face clearly well. You had not covered it. I saw 3 men one of them was dark and tall and the other who cut my dad was relatively shorter. The suspect who remained with me and who raped me was a bit brown and slender and tall. It was you.”

After the robbery incident, a report was made to the police. The police visited the scene of crime. In the first report made to the police, no description of the robbers was given. In the first report to the police it was also indicated that after the robbers had gained entry into the house, they switched off the electric lights. On 29th January 2014, the Appellant was arrested after another robbery was reported to the police. He was arrested by PW5 Corporal Steve Mulumba who was on patrol at the time. He told the court that he rescued the Appellant as he was being beaten by the members of the public on allegation that he was a robber. None of the persons who apprehended the Appellant were called to testify in the case. The Appellant was then taken to Ruai Police Station where he was detained. On 30th January 2014, the complainant, PW2 and PW3 were called to the station to identify if the Appellant was one of the men who robbed them. Unfortunately, the Appellant was exposed to the witnesses. No identification parade was done. PW2 told the police that the Appellant is the robber that raped her. The complainant and PW3 still insisted that they did not identify any of the robbers. It was on the basis of this evidence of identification by PW2 that the Appellant was convicted. In his defence, the Appellant denied involvement in the robbery.

This being a first appeal, it is the duty of this court to reconsider and to re-evaluate the evidence adduced so as to reach its own independent determination whether or not to uphold the conviction of the Appellant. As was held by the Court of Appeal in Njoroge –Vs- Republic [1987] KLR 19 at P.22:

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”.

In the present appeal, the issue for determination by this court is whether the prosecution adduced sufficient evidence to establish the guilt of the Appellant to the required standard of proof on the charge of robbery with violence contrary to Section 296(2) of the Penal Code.

In the present appeal, it was clear from the evidence that the prosecution relied on the evidence of a sole identifying witness to secure the conviction of the Appellant. It was apparent that the said identification was made in circumstances which can only be described as difficult. PW2 testified that she identified the Appellant by the moonlight. She gave description of the physique of the Appellant in her testimony before court. This was dock identification. However, she did not give this description in the first report that she made to the police. She admitted in her evidence that she saw the robber for the first time during the night of the robbery. The Appellant was arrested twelve (12) days after the robbery incident. This was when PW2 was called to the police station to see if the Appellant was one of the persons who robbed them. No identification parade was mounted.

The Appellant was unceremoniously shown to PW2. It was at that point that PW2 stated that the Appellant was among the gang that robbed them. Over the years, courts have come up with principles to guide trial courts when considering the evidence of identification especially where the identification was made in difficult circumstances. In Maitanyi –Vs- Republic [1986] KLR 198 at P.200 the Court of Appeal held thus:

“Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:-

“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”.

In the present appeal, it was clear to this court that the trial court did not warn itself of the danger of relying on the evidence of a single identifying witness where identification was made in difficult circumstances to convict the Appellant. There were certain factors which were present in the evidence adduced by the prosecution witnesses that militated against the trial court reaching a finding that PW2 had properly and positively identified the Appellant as one of the robbers. The incident took place at night. The electric light had been switched off. The source of light was suspect. The victims of the robbery were terrorized. They were traumatized. PW3 stated as much in her evidence when she stated that she was weak and could not react to what was being asked of her by the robbers because she was traumatized. The testimony by PW2 that she identified the Appellant by the moonlight is incredible in that it was not possible for PW2 to register the complexion of the robbers using such source of light. In any event, PW2 did not give the description of the robbers in the first report that was made to the police. Unfortunately, the police exposed the Appellant to PW2 before an identification parade was held. The trial court failed to consider these factors before reaching the verdict that the Appellant was guilty as charged. There was no other evidence to connect the Appellant to the robbery. None of the stolen items were recovered in Appellant’s possession.

From the judgment of the trial court, it was clear that the trial court concentrated to a large extent on the weakness of the Appellant’s defence rather than on the strength of the prosecution’s case. The trial court went off tangent when it questioned the validity and the credibility of the Appellant’s defence instead of making inquiry whether the evidence adduced by prosecution witnesses established the guilt of the Appellant to the required standard of proof beyond any reasonable doubt. The Appellant’s complaint to the effect that the trial court shifted the burden of proof from the prosecution to the defence is therefore valid. It does not matter whether an accused gives a patently false testimony in his defence if the prosecution’s case is so weak as to fail to attain the threshold in regard to standard of proof as established by the law.

Enough said. The Appellant’s appeal has merit and is hereby allowed. His conviction is hereby quashed. The sentence imposed upon him is set aside. He is ordered set at liberty forthwith and released from prison unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 18TH DAY OF JULY 2017

L. KIMARU

JUDGE