[2013] KEHC 1209 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 130 OF 2010

JOHN AKOTOROT LOKITAUNG …......................................... APPELLANT

VERSUS

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

(Appeal arising from the decision of Hon. T. Nzyoki, SRM in Lodwar Principal Magistrate's Court in Criminal Case No. 472 of 2012 delivered on 8th November, 2010)

J U D G M E N T

The appellant, John Akotorot Lokitaung, appeared before the Senior Resident Magistrate at Lodwar charged with robbery with violence contrary to Section 296(2) of the Penal Code, in that on the 13th July, 201 at Lodwar Township Turkana Central District, being armed with a dangerous weapon namely a knife, robbed David Ejikon Epetet a mobile phone make Nokia 1202 valued at Kshs. 2,000 and immediately after the time of such robbery threatened to use actual violence to the said David Ejikon Epetet.

After pleading not guilty to the offence, the appellant was tried, convicted and sentenced to suffer death as provided by law.

Being aggrieved by the conviction and sentence, the appellant preferred the present appeal on the basis of the grounds contained in his petition of appeal filed herein on the 18th November, 2010 in which he raises complaints to the effect that he was convicted on the basis of evidence which was contradictory and insufficient. He also complains that the Learned Trial Magistrate disregarded his alibi defence and shifted the burden of proof to himself.

At the hearing of the appeal, the appellant appeared in person and fully relied on his grounds of appeal in support of his case. The Learned Prosecution Counsel, Mr. Kimanzi, appeared for the State/Respondent and opposed the appeal by submitting that Pw 1 found the appellant in the process of robbing the complainant (Pw 2) at about 9. 00pm. That, Pw 2 had previously known the appellant and recognized him with the help of bright torch light. That, the appellant had a knife and that he robbed the complainant of a mobile phone using violence. That, there was full moonlight at the time of the robbery.

The Learned Prosecution Counsel further submitted that the appellant was a person well known as one who burnt tyres near the Lodwar District Hospital and contended that his conviction by the Learned Trial Magistrate was proper.

The Learned Prosecution Counsel therefore urged this Court to dismiss the appeal.

The duty of a first appellate Court such as the present one is to re-visit the evidence afresh and draw its own conclusions bearing in mind that the trial Court had the advantage of seeing and hearing all the witnesses (see, Okeno Vs Rep [1972] EA 32 and Achira Vs Rep [2003] KLR 707.

In summary, the case for the prosecution was that at the material time, Samuel Emuria (Pw 1)was employed as a watchman in a garage at Lodwar town and on the material date at about 9. 00pm, he was heading to work from home when he allegedly saw the appellant struggling with the complainant. The appellant was a person previously known to him (Pw 1). He saw him pointing a knife at the complainant. He was able to see the two of them with the aid of a torch which emitted bright light. He (Pw 1) was carrying a “rungu” (club) and when the appellant saw him, he (appellant) ran away with the complainant's mobile phone. Later, on the 20th July 2010, he assisted some Police Reservist Officers to apprehend the appellant.

The complainant, David Ejikon Epetet (Pw 2), was on the material date and time heading home in bright full moon when he met the appellant, a person known to him, who slapped and hit him on the chest with his fist. The appellant then drew out a knife and demanded his (complainant's) property. He surrendered his mobile phone and screamed for help. It was then that he was rescued by the watchman (Pw 1) as the appellant ran away. He (complainant) reported the matter to the Police and later identified the appellant after his arrest.

A Police reservist, Jackson Wangole (Pw 3), was responsible for arresting and handing over the appellant to the Police at Lodwar Police Station through P. C. Thomas Kasyoka (Pw 4) of the said Police Station who investigated the case and preferred the present charge against the appellant.

The appellant denied the charge and defended himself by stating that he was making rat traps and chicken cages on 10th July, 2010 and on the 20th July 2010 he went hawking his products near the D. C's resident. But, when he was at the Lodwar Law Court he was called by a man whom he assumed was a customer. The man led him to Lodwar Police Station where he was assaulted and accused of being a robber. He remained in the Police cells for about four (4) days prior to being arraigned in Court on 26th July 2010. He contended that he did not commit the offence as alleged.

After considering the foregoing defence together with the prosecution evidence against the appellant, the Learned Trial Magistrate dismissed the defence as an afterthought and concluded that the case had been proved against the appellant beyond reasonable doubt.

The Learned Trial Magistrate stated by setting out the necessary ingredients of the offence of robbery with violence under Section 296 (2) of the Penal Code and citing the case of Oluoch Vs Rep [1985] KLR 549 rightly indicated that such offence is proved if any of its ingredients or elements is established.

Indeed, in our view, there was sufficient and consistent evidence from the complainant (Pw 2) and the watchman (Pw 1) showing that the complainant was confronted by a lone offender who threatened him with an offensive weapon (i.e. knife) and unlawfully took away his mobile phone which was never recovered.

In essence, the fact of robbery with violence was never disputed by the appellant. His defence was that he was not the person responsible for the offence. Consequently, it was incumbent upon the prosecution to establish beyond reasonable doubt that it was the appellant and not any other person who offended the complainant on that material date and time.

Given that the offence occurred in the hours of darkness, the prosecution was expected to establish that there existed favourable conditions and adequate opportunity for the identification of the appellant as the person responsible for the material offence.

Herein, both the complainant and the watchman (Pw 1) indicated that they had previously known the appellant as an artisan (fundi) who made rat traps and chicken cages using wires. Indeed, the appellant admitted that he was such artisan and implied that he was arrested while hawking his products. He also indicated that on the material night of the offence he was at his home sleeping. It was therefore apparent that the alleged identification of the appellant by the complainant and the watchman (Pw 1) was more of identification by recognition.

It was said by the Court of Appeal in Anjononi & Others Vs Republic [1980] KLR 59, that:-

“The proper identification of robbers is always an important issue in a case of capital robbery emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was however, a case of recognition not identification of the assailants; recognition of an assailant is more satisfactory more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

Herein, the watchman (Pw 1) stated that he had a torch with bright light thereby making it possible to recognize the appellant. This complainant (Pw 2) said that there was bright full moonlight at the time of the offence such that he was able to recognize the appellant.

The watchman was three steps away from the appellant when he saw him while the complainant met the appellant who assaulted him and demanded his (complainant's) property.

Although the appellant denied the offence, we have no doubt in our minds that the conditions for his identification or recognition by the complainant and his witness (Pw 1) were favourable such that the possibility of mistaken identification was completely wiped out.

It may therefore be safely stated that the identification of the appellant by recognition was a sound basis for his conviction by the trial Court.

In the end result, we find that this appeal is devoid of merit and is hereby dismissed.

(Delivered & signed this 5th day of November, 2013).

J. R. KARANJA

JUDGE

E. OBAGA

JUDGE

In the presence of:

Appellant: ….................................................

Respondent: ….................................................