[2021] KEHC 6106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NO. 95 OF 2015.

JOHN EKIRU.......................................................APPELLANT

VERSUS

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

(BEING AN APPEALFROM THE JUDGEMENT OF HON. J. MWANIKI (P.M) DATED 9TH APRIL 2015 IN CRIMINAL CASE NO. 1169 OF 2011).

JUDGEMENT.

1. The appellant with another were 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 the 24th day of March 2011 at Njoro Kenana farm in Nakuru district within Rift valley province jointly with others not before court while armed with dangerous weapons namely AK47 rifles and pistol robbed STEPHEN GRAIG SCOTT one laptop make sonny valo, one digital camera make Olympus ,three nokia mobile phones ,a pair of sunglasses ,ksh.500 ,airtel credit ,one brown leather wallet and a pin sentry in plastic folder all valued at kshs.154,500 and at or immediately before or immediately after the time of such robbery used actual violence to the said STEPHEN GRAIG SCOTT.

2. The second charge was also Robbery with violence contrary to section 296(2) of the Penal code. The particulars of the offence were that on the 24th day of March 2011 at Njoro Kenana farm in Nakuru district within rift valley province jointly with others not before court while armed with dangerous weapons namely AK 47 rifles and pistols robbed CARL TUNDO of cash kshs. 20,000 and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said CARL TUNDO.

3. The appellant was convicted and sentence to serve 30 years’ imprisonment hence this appeal. He has fundamentally raised three grounds in the petition of appeal which the court shall examine later. In the meantime, it shall be appropriate to summarise the evidence as presented during trial.

4. PW1 STEPHEN GRAIG SCOTT the complainant, testified that on the night of 24th March 2011 at around 8pm he was in his house with the wife and the children when he heard the dogs back. She sent the wife to check and see thereafter informed him that there were armed people in the kitchen. They came in with them and they began assaulting him.

5. He felt down and one of the men who was holding an AK 47 rifle demanded money from him. He managed to run to the bedroom to activate the alarm and he heard some gunshots. They followed him and began beating him till he lost consciousness. When he regained his consciousness he was alone in the house.

6. He went to his neighbour’s house where first aid was administered to him and rushed to the hospital. He said that during the incident there was sufficient light and he was able to recognise the person who hit him except the one who was holding the gun. He said that he was able to stay with the intruder for about 10 seconds.

7. He went to the hospital and later issued with a p3 form which showed the extent of the injuries he sustained from the shooting of both legs. He also sustained a cracked skull injury. He identified the gun in court. The stolen items were however not recovered.

8. On 29th October 2011 he participated in an identification parade where he identified the appellants co-accused who was the one that pointed the gun at him.

9. PW2 CLARE LEWE SCOTT the wife of PW1 testified that on the material day at around 8pm she was home with her husband and their two children when they heard the dogs backing. She requested Albert the cook to go and check on them and suddenly an armed man came in who spoke in English and he was dressed in army uniform. Other men came in and joined them.

10. They then beat her and demanded money. They went to where the husband PW1 was and demanded money and any other valuables. She took them to the safe but there was no money.

11. The lights went off as she continued pleading with the assailants who then let her out of the house. They demanded that they should let her to the house of CARL TUNDO and as they went he saw him entering his car. They shot at him even as they entered his house. They left one man to guard her who thereafter left. She said that she heard two gun shots.

12. She said that she was able to see the intruder for she stayed with him for about 30 minutes and that the lights were on when the incident started. After the shooting stopped their friends came to their rescue.

13. She went back the following day and found the house totally ransacked with bloodstains in the bedroom and bullet holes in some part of the house. She identified the gun in court.

14. She also participated in a parade identification on 20th September 2011 where she picked out the appellants co accused. She also said that she saw the appellant in the house that night although she did not know what role he played.

15. PW3 CARL TUNDO testified that he was in his house at around 8pm on 24th March 2011 when he heard some two gunshots. He also heard alarm go on and off at his neighbour’s house. He headed towards the said house to check what was going on and as he reversed he heard gunshots and he realised that he was being shot at.

16. He rushed to the scene where he found police officers and could hear more gunshots. They found PW1’s baby on the floor and blood in his bedroom. As they went back to his house they found PW2, her daughter and the cook and there was also a body within the compound who was one of the intruders.

17. He found drawers ransacked and Kshs. 20,000 stolen which he had kept in an envelope. He however did not identify any of the intruders.

18. PW 4. S P LAWRENCE NDITHIGA from the firearm lab CID headquarters on behalf of his colleague Emmanuel Langat produced the exhibit memo and firearm examination report. The said report concluded that the spent cartridge was fired from the firearm recovered by the police.

19. PW5 WALTER MATUYA was a worker for PW1. He said that on the material day at around 8pm he heard the dogs barking repeatedly and as he went to check he met about 10 people and one of them wanted to see his boss. They were dressed in civilian and uniforms. He said that the appellant was the one holding the gun.

20. The appellant co accused grabbed his hand and handed him to another person and they went to the house where he found the appellant having handed the gun to another person. They were then ordered to lie down. He heard gunshots as they were led to another room. He went on to state that PW1 had been injured and he was bleeding and he collapsed.

21. They were then taken together with PW2 to the second complainant’s house where he saw him board the vehicle and took off even as the assailants fired on him. He was able to see the intruders well at the house of Tundo. The said intruders took off as the shooting begun outside. The police with the second complainant then arrived.

22. They went outside and found the body of one of the intruders whom he did not recognise. Later at an identification parade he managed to identify the appellants co accused. In another identification parade on 19th October 2011 he identified the appellant herein. He said that he was the one who had the gun when he encountered the intruders. He said that he stayed with the intruders for close to half an hour and there was sufficient light although he had not seen them before the incident.

23. PW6 OLIVE NIGHTNGALE testified that he was in his house on the material day and at around 8. 30 pm he received a call from his brother Andrew who told him that he heard some gunshots from PW1 house. He rushed to the scene and on the way he met PW4 who told him of the incident. He called police from Njoro who arrived within five minutes.

24. They went to PW1 house where everything was in amess and the house help was hiding. His one-year-old child was lying on the floor and there were bloodstains in his bedroom. They searched for him but they found out that he had gone to pw1 house. They searched for the robbers in vain but pw1 said that he would be able to identify them. There was also a dead body outside PW1’s house.

25. The police searched the said body and recovered a phone. Later he saw the appellant surrendering a gun to Pastor Owuor and the OCPD in a live television. He spoke much about the robberies he had undertaken in Njoro area. He identified the gun used in court as well as the newspaper cuttings.

26. PW7 DR. MOHAMED MALIK produced the P3 form dated 11th April 2011 in respect to PW1 whom he had treated at War memorial hospital. He said that he had been shot and had blood on the head and had a depressed skull and a gunshot on the thighs. After treating him he was later transferred to Nairobi hospital where he had referred him. He produced the discharge summary from Nairobi hospital as well. He assessed the injuries as harm.

27. PW 8 CORP. NICHOLAS MULI MUTISYA testified that he was on duty on 29th March 2011 when a person came and informed him of a robbery incident at Njoro which had happened on 24th March 2011. He conducted Safaricom and were able to give him a printout of telephone number [Particulars Withheld]which belonged to one David Kamau Kiria the robber who had been killed. The other numbers belonged to some of the robbers who had been killed as well as the appellants co accused.

28. PW9 CORP. CHRISTINE FURAHA took over investigations from PW8. She said that on 25th October 2011 he received a gun handed over to a priest in a crusade. She subjected the same for ballistic examination as well as the spent cartridge recovered at Kenana farm which results were positive. She also identified the appellant’s co accused who was at the crusade. She went ahead to produce the CD of the said crusade.

29. She said that the appellant had earlier been arrested at Njoro with bullet wounds immediately after the incident. He had been treated at PGH Nakuru and a P3 form filled. She also produced the P3 form as well as an identification parade form.

30. When cross examined by the appellant she said that she was charged in court based on the identification parade results as well as the bullets wounds he sustained and he could not explain the cause.

31. PW10 CI DISHON KURESHO testified that he conducted an identification parade on 5th April 2011 and the witness was one Matuya. He carried out the said identification and out of the 8 persons the appellant was singled out by the witness. He however declined to sign the parade forms saying that he was not satisfied with the procedure.

32. PW11 DR. JUSTUS NONDI based at Nakuru provincial general hospital testified on behalf of Dr. Onchere whom he said had worked with him and was conversant with his handwriting and signature. He produced the P3 form as well as a waiver form in respect to the appellant who had been treated at the said hospital. He said that the patient had been injured in a shoot-out incident on 29th March 2011. The injuries were about 6 days old and were consistent with bullet injuries which did not penetrate.

33. PW12 C I HARUN MOGERE was the OCS Njoro police station during the incident. He said that pw9 requested him to conduct an identification parade for a suspect who was already in custody. The complainants who were to identify the suspect were Mr Scott, Clare and Matuya Onyiro. They in each separate parades were able to identify the appellant herein.

34. PW13 DR. VINCENT MUOKI from Nairobi hospital produced a discharge summary for PW1 which showed the extent of the gun wounds and the depressed skull. It indicated also that he had undergone several surgeries.

35. PW14 SSP JOHNSTONE OKASIBA IDARA testified that he was called by a bishop of Outreach church on 26th May 2011 over an urgent issue. He was in a company of two elders and the appellant’s co accused where they surrendered a gun to him. He handed him two other guns which he handed them to the OCPD Nakuru. Another gun was handed over to him courtesy of Bishop Owuor on 27th May 2011. This incident was as well televised and reported in the print media. The appellants co accused confessed to his past criminal activity.

36. He said that after ballistic examination of the gun he found that this was the same one that had been used during the robbery at Kenana farm. He was arrested and charged.

37. PW15 CORP. HANTENT MUSYOKA testified that he was on duty on 24th March 2011 when they got information regarding the robbery. They rushed to the scene where they were not able to find pw1 and 2 but later found them in pw3 house. He had been shot at the thigh. Nightingale said that he had exchanged fire with the intruders. PW1 said that he could identify some of the intruders. They also found one of them had been killed. They found some spent cartridges fired from an AK 47 rifle which was in court.

38. Later the appellant was arrested with bullets wounds by the members of the public at Maili Tatu and he went and took him to the hospital. He also identified the P3 forms as well as the treatment chits produced in regard to the appellant. He said that he knew the appellant since he had earlier been arrested for impersonating an army officer.

39. On cross examination by the appellant he said that he believed the wounds were caused by a hunting rifle which disintegrate hence the reason why there was no proper penetration on the body. He said that he wore clothes which had bullet holes.

40. Later PW15 was called to identify the above clothes which showed the burned holes at the thighs. The vest as well as the boxer short had bullets holes too. All the clothes were produced as pieces of evidence.

41. When placed on his defence the appellant gave sworn evidence where he said that he was at work on 30th March 2011 at St. Lwanga Catholic Church. He then went to Njoro police station to claim his goods but he was locked up and charged later in court. He denied knowing anything regarding the incident of 24th March 2011.

42. On cross examination he said that he was home with his wife and child on 24th March 2011 and that the clothes with bullets holes were not his. He denied having any bullet scars in his body.

43. His co accused was apparently later killed in a separate robbery incident.

The parties were ordered to file written submissions which they have complied.

APPELLANTS SUBMISSIONS.

44. The basic ground raised by the appellant in his grounds of appeal in particular is on the question of circumstantial evidence. He said that by virtue of the fact that the trial court found the identification not to have been insufficient, he should have been acquitted. He said that the contradictions by PW11 and PW15 on the number of the bullet wounds was very material and should have been construed in his favour.

45. He went on to submit that the respondent did not bother to ascertain how the appellant sustained the bullet wounds yet the incident took place on 24th March 2011 yet he was arrested on 29th March 2011 which dates were different. In essence he submitted that the trial court failed to adequately analyse the evidence and failed to take into consideration his defence and therefore his appeal should be allowed.

RESPONDENTS SUBMISSIONS.

46. The learned state counsel supported the findings by the trial court. She said that the identification of the appellant was proper and it clearly fell within the principles laid down in the case of R VS. TURNBULL (1976) 3ALL ER 549. She submitted that the trial court did not rely on this ground of identification to convict the appellant.

47. She submitted that the trial court clearly evaluated the evidence as presented during trial and found the appellant culpable. The appellant was arrested with bullet wounds which he could not explain how he sustained. Despite the appellant sustaining bullet wounds he denied in his defence that he had suffered any yet the medical documents produced as well as the P3 forms sufficiently proved the same. She prayed for the appeal to be dismissed.

ANALYSIS AND DETERMINATION.

48. The court has perused the lengthy proceedings as well as the evidence tendered and the exhibits produced and the parties written submissions. The duty of the appellate court is to re-evaluate the evidence afresh and arrive at its own independent conclusion noting that it did not have the benefit of seeing the witnesses and their demeanour which was a preserve of the trial court. (See OKENO V. REP. (1973) E.A .32).

49. The robbery incident indeed took place as was clearly exemplified by the witnesses. In the process pw1 was seriously injured and all the medical evidence were produced. The question was whether the appellant was with the intruders who were said to be between 8 and 10 in number.

50. On whether the complainant identified the attackers he said in his evidence in chief that;

“...there were lights all over. The light was adequate. I did not recognise the person who hit me on the face. I saw the man who was pointing the gun at me. I stayed with the intruder in the light for about 10 seconds.”

51. He went on to say “...I told the police I could identify the assailants. On 29th October 2011 I did participate in an identification parade. I did identify the man who was pointing a gun at me. He is the 2nd accused at the dock wearing a which jacket (pointing at A2). I look at him intently...”

52. PW2 the wife to PW1 as well identified the appellant in the house and during the identification parade. She said on cross examination that there were lights during the incident.

53. PW5 the employee of pw1 said in his evidence in chief that;

“...some intruders were in civilian and others had uniform resembling the security guards. One had a gun. The one had a gun is the accused at the dock. Accused 1 grabbed me by hand and handed me to another person.”

54. He said that he stayed with the assailants for about half an hour and that there was sufficient light and was able to identify them.

55. Clearly the witnesses’ evidence on identification at the scene was corroborated by the parade identification. I have perused the separate parade identifications on record and this court is satisfied that they were meticulously conducted. It is not true that the appellant was not identified. The time he spent at the scene enabled the three witnesses to have recognised him.

56. It is also instructive to note that none of the witnesses had seen the appellant before the incident. The fact that he did not in any way make any effort to conceal his identity during the incident lends credence to their evidence on identification. In the same vein there was no suggestion that though the incident took place at night there was insufficient light. This did not feature during the trial.

57. The other issue is the bullet wounds sustained by the appellant. The appellant denied that he sustained any bullet wounds. The respondent witnesses clearly pointed out this fact. The medical report by PW11 explained the nature of the injuries which were consistent with the bullets wounds in the appellant’s body as well as holes in the clothes he wore when he was arrested as he sought treatment.

58. At the same time the type of gun used was explained, namely that it was a hunting gun which degenerates after use which was used by one of the witnesses during the incident. The injuries were about 6 days’ old which in my view tallies with the period the robbery took place.

59. More importantly the appellant did not explain how he sustained the injuries. The bullet wounds are not ordinary wounds which one sustains. He ought in his sworn defence or at least poke holes on this evidence during cross examination. Both the bullet wounds as well as the bullet holes were in his body and he failed to explain the source.

60. The court agrees as well with the trials court findings that the weapon produced namely the AK 47 rifle were traced to the scene of the crime. The ballistic report was watertight and it was not shaken by the appellant’s cross examination at all.

61. In the premises this court finds that contrary to the submissions by the appellant, there are both direct and circumstantial evidence pointing to the guilt of the appellant. The witnesses clearly saw him at the scene. There was sufficient light coupled with the fact that they spent some reasonable time with them which gave them some sufficient time to identify the assailants.

62. The medical evidence produced especially namely the P3 forms and the treatment chits indicated the extent of the bullet wounds he sustained. It mattered not whether they were three or five but they were wounds sustained in a shoot-out. The appellant was unable to explain the source.

63. The identification parade was carried out as per the laid down rules. Even though he failed and or refused to sign the forms this court does not find any prejudice at all suffered by the appellant.

64. Consequently, the court does not find any merit in the appeal and the same is hereby dismissed.

Dated signed and delivered via video link in Nakuru this 14th day of June 2021.

H. K. CHEMITEI.

JUDGE.