[2004] KEHC 758 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET. APPELLATE SIDE CRIMINAL APPEAL NO. 69 OF 2003

(Being an appeal against the Judgment of F.A.Mabele (Esq.) Principal Magistrate, delivered on 10th June 2003 in Kapsabet Principal Magistrate’s Criminal case No.845 of 2002)

JOHN CHEMENGICH WACHIE AND ………………………………….…….APPELLANTS

PETER CHERANGAS

VERSUS

REPUBLIC…………………………………………………………………..………………..….RESPONDENT

CONSOLIDATED WITH APPEAL CASE NO. 70 OF 2003.

JUDGMENT.

John Chemengich Wachia and Peter Cherangas Mwobe were originally jointly charged with the offences of robbery with violence, contrary to section 296(2) of the Penal Code.

Mwobe was also charged with the offences of resisting arrest contrary to section 253 of the same code (count II), wounding with intent contrary to section 231 of the said code (count III), handling stolen goods contrary to section 322 (2) of the said code (count IV) and having suspected stolen property contrary to section 323 of the same code (count V).

They were both convicted of the offence of robbery with violence in count I and sentenced to suffer death. Mwobe was acquitted of Counts IV and V, counts but was however convicted of the offences in count II, III and sentenced to serve 12 months and 18 months imprisonment respectively, which sentences were to run concurrently.

They have now preferred their appeals against both the convictions and sentences, their appeals were consolidated for purposes of hearing and final determination.

It is their grounds inter alia, that the prosecution failed to prove the case beyond reasonable doubt, that the convictions were based on contradictory evidence, that material witnesses were never called to testify, and that their defences were disregarded unfairly.

Before we proceed further, it is important that we have it on record that, we do take note of the fact that before the trial, the prosecution made several applications to amend charge sheet and to redraft it with a view to substituting the charges, after which both the appellants were required to plead to count I. The 2nd appellant was also required to offer his plea in the II, IV and V counts, yet the charge sheet which appears in the proceedings and which one would assume was the final charge sheet has only three counts, which are basically the original 1,II and a new count III, being that of assault in resisting arrest contrary to section 253 (a).

We find that the charges were very confusing to say the least and the trial Magistrate did not find it easy either for not only did he take pleas to non existent charges, but he proceeded to convict the 2nd appellant of the II and III counts, to acquit him of IV and V, yet he had been charged with only 3 counts including that of robbery with violence. In our opinion this occasioned grave injustice to the 2nd appellant.

Be that as it may be, we have as is expected of us, re – evaluated all the evidence. It is on record that according to PW4, their assailants were dressed in police uniforms and that one then was wearing a badge which clearly showed his force number as 55017. it was in the circumstances imperative that the investigating officer address this issue, but he did not, giving further reasons to doubt whether the appellants were actually connected to the crime of robbery with violence.

We find that though the victim of the robbery (PW1) did not give out any names of his assailants in his report, the police who led to the arrests already had the 2nd appellant in mind. They were led to the 2nd appellants home by a person who was never called to give evidence, which in our opinion was a major lapse in the prosecution case as, where a material witness such as he was, is not called, the court can but only assume that his evidence would have been prejudicial to the prosecution case.

In any event, we find that the evidence of PW 8, one of the arresting officers contradicted that of his colleagues,( PW3 and 5) especially as afar as regards the count II in that while he claimed that only three officers were involved during the arrest of the 2nd appellant, PW3 and PW4 testified that six officers had been involved in the arrest, and that at no time did PW8 testify that the 2nd appellant attacked any of those who went to arrest him. It would appear that the arrest was peaceful and without any incidents.

But even if that was not enough to alert the trial magistrate, he should have noticed that though PW10 the clinical officer who attended PW3 after the alleged incident, testified that he had attended to him on 28. 5.2002, and that an x-ray report revealed that PW3 had sustained a fracture on the left hand which also had a cut wound, the x-ray films on record show that they were actually taken on 1. 6.2002 and 26. 6.2002 and not 28. 5.2002. It would appear that the x-ray was taken days after he examined PW3, which was yet another glaring contradiction in the prosecution case.

Such contradictions can only give the accused persons, the benefit of doubt. It is trite law that whenever there is any doubt in the prosecution case, no matter how minor the doubt, a conviction cannot lie.

It is for the above reasons that we find that the prosecution case was not only full of contradictions, but that the evidence did not support the charges against the appellants, and hence, the prosecution failed to prove its case beyond reasonable doubt.

The appeal is hereby allowed, the convictions quashed and sentences set aside. The appellants should be released forthwith unless otherwise held in lawful custody.

Dated and delivered at Eldoret this 22nd day of April 2004.

JEANNE GACHECHE

JUDGE

GEORGE DULU

JUDGE.

Delivered in the presence of: -