[2017] KEHC 2609 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAPENGURIA

CRIMINAL APPEAL NUMBER 29 OF 2016

CORAM: JUSTICE S.M GITHINJI

(From original conviction and sentence in criminal case number 1944 of 2015 of the Principal Magistrate’s Court at Kapenguria)

JOEL KIDINGI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

JUDGMENT

JOEL KIDINGI was convicted for an offence of Robbery with Violence, Contrary to Section 296(2) of the Penal Code.

The particulars of this offence are that on the 10th day of November, 2015 at Sinah Area, in South Pokot District, within West Pokot County, the appellant robbed Jackson Ywalasya Kshs.3,700/- and at or immediately after the time of such robbery used actual violence to the said Jackson Ywalaswa.

The prosecution case is that on 10. 11. 2015 at about 6pm, the complainant in this case who gave evidence as PW-1 was in his farm harvesting maize. He commenced his journey home at around that time. The appellant approached him. He hit him and fell him down. He was armed with a stick. He bit his finger. He took complainant’s wallet of which had 3,700/-. The complainant used to see him around Sina area. The appellant then left. On 11. 11. 2015 the complainant reported the matter at Kapenguria Police Station. He was issued with a P-3 form. He proceeded with it to Kapenguria Hospital. It was filled. The clinical officer noted that he had bite marks in the left middle finger and left bicepts. The said injuries were about 16 hours old. They could have been caused by tooth and fists. He assessed the degree of injury as harm. PC Joakim Obuya Ogembo investigated the case. The money stolen from the complainant was in a Safaricom Wallet which contained kshs.3,700/-, National Identity Card, Sim card holder, and documents. He recorded witness statements and visited the scene. He sought assistance of KPR officers.

On 12. 11. 2015 PW-2, a KPR officer was at Sina. The complainant approached him, holding a police note to look for the suspect, one Joel Kidingi. He called the area village elder and a colleague. They went to accused’s home. They found him in a neighbour’s place. He was interrogated about the offence. He attempted to run but was held. He had with him the complainant documents. He was taken to Kapenguria Police Station. P. C. Steven Kenga re-arrested him. He was searched and had a black Safaricom Wallet of which had a voter’s card, sim card holder and a subscriber’s sim registration form. They all belonged to the complainant. The appellant was then charged.

The appellant in his defense stated that he lives at Lelan area and is a farmer. He does not know the complainant and that the charge is not true. On 13. 11. 2015 he attended children celebration till 5pm. He was then arrested and taken to Sina area for an offence he did not commit.

The trial court evaluated the evidence, found the appellant guilty and sentenced him to death.

The appellant dissatisfied with the said conviction and sentence, appealed to this court on the grounds that:-

1. He pleaded not guilty to the charge.

2. Key witnesses did not give evidence

3. Prosecution case was not corroborated.

4. His defence was rejected without any cogent reason and the burden of proof shifted to him.

I have weighed the evidence on record, the grounds of appeal and the submissions by both sides.

There is only one eye witness to the incident constituting the offence, who’s PW-1, the complainant. He was not consistent and firm in his evidence-in-chief. He said he was hit and fell down by somebody. He did not state where he was hit and with what. The assailant bit his finger. He did not state which finger. Later he said he was injured on the middle finger on the left. He never talked at all about the bite wound the clinical officers observed on the left bicepts. The injury he as well stated was caused by fists was not clarified and complainant did not disclose of any such injury. On what was allegedly stolen, the complainant stated it was his 3,700/- and a wallet. He did not describe the wallet and what else was therein apart from the cash. The charge sheet does not disclose of anything else apart from the cash.

About the assailant he said, “It’s the accused person herein. I did not know him before this date. I saw him that date.” This suggests accused was a stranger to him. However he further stated, “I was given a note to take to KPR Sina, who arrested him. I used to see him around the area of Sina even when I was tiling my shamba.” This latter statement by him contradicts the earlier position. The evidence does not disclose the description he gave of his assailant in the OB. With the contradiction it’s hard for one to tell whether or not he knew the appellant before then.

The wallet of which was allegedly recovered by the arresting officer and the re-arresting one, containing the complainant’s documents had not as stated earlier been described by the complainant. If the arresting officer who’s a KPR had recovered it, it’s doubtful how it was handed back to the appellant to be recovered by the re-arresting officer in the station. There’s mix up as far as the evidence of the recovery of the items is concerned. They are not items of value and one would wonder why the appellant would move around with them in his pocket, knowing they can be highly incriminating, if at all he’s the real culprit.

The evidence of identification or recognition of the appellant as the culprit is shaky and uncorroborated. It’s unsafe to rely on to arrive at a conviction.

The doctrine of recent possession cannot also safely be invoked given that it’s not convincing that the appellant was arrested in possession of the complainant’s black safaricom wallet, containing some of his documents.

Given the settled position of the two foregoing issues, I’m certain, the conviction was not safe. The offence is serious and carries a mandatory death sentence, calling for very careful evaluation of the evidence.

The appellant deserved the benefit of doubt of which I do accord to him. The conviction and sentence are therefore hereby quashed. He should be set free unless otherwise lawfully held.

Judgment read and signed in the open court in presence of M/S Chebet, the advocate for the appellant, Appellant and M/S Kiptoo the State Prosecutor, this 1st day of November, 2017

S. M. GITHINJI

JUDGE

1. 11. 2017