[2015] KEHC 193 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 85 & 87 OF 2012

JOHN MALUKI……….……..…………………...……….… 1ST APPELLANT

ALEX MUSYMI….…………………………………………..2ND APPELLANT

Versus

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

(Being an appeal from original conviction and sentence in Criminal Case No.2480 of 2010 at Chief Magistrate’s Court at Mombasa – before Hon. J.Omburah S.R.M delivered on 13. 4.2012 )

JUDGEMENT

The Appellant John Maluki and Alex Musembi Musymi were charged with the offence of robbery with violence contrary to section 296(2) to the penal code.

The particulars of the offence are that on 8th day of August 2010 at Bombolulu area in Kasauni District of the Coast Province, jointly with others not before court while armed with dangerous weapons namely pangas, robbed Kilunda Ndumbi of his motor cycle registration KMCF 862K make Hauki valued at Ksh.57,000/= and at or immediately before or immediately after the time of such robbery used actual violence on the said Kilunda Ndumbi. At the trial the prosecution called 5 witnesses and the appellant gave unsworn statement. Thereafter, the trial learned Magistrate found each of the appellants guilty of the offence, convicted and sentenced each of them to suffer death. The appeals were consolidated.

Grounds of Appeal

Aggrieved by the conviction and sentence, the appellant appealed.

The 1st Appellant’s grounds of appeal

a. That the learned trial Magistrate erred in law and fact in basing the conviction and sentence on the charge as drafted against him without properly considering that the same was not proper as required by law hence defective.

b. That the learned trial Magistrate erred in law and fact in convicting and sentencing the appellant while relying on the prosecution evidence adduced before the court without considering that the appellant proceeded to hear his trial without the witness statements which was an infringement of constitutional rights.

c. That the learned Magistrate erred in convicting and sentencing the appellant while relying on the alleged visual identification evidence at the scene without considering that the circumstances at the scene were not favourable for anyone to make positive identification hence mistaken identity might have occurred.

d. That the learned trial Magistrate erred in fact and in law in convicting and sentencing the appellant on reliance of identification without properly considering that there were no descriptions of the assailants give to the police and it was important for a parade to be organized to prove the same

e. That it was improper for the learned trial magistrate to fail to consider that the appellant’s arrest had no connection with the matter in question.

The 2nd appellant has appeared on the amended grounds as follows:

That the learned trial Magistrate erred in law and fact by depending on evidence of identification at the scene of crime without considering that the circumstances prevailing at the scene of crime were not conducive for proper identification to be established.

That the learned trial Magistrate erred in law and fact by not considering that the source of arrest was not established to have had any link with the instant matter as none of the arresters turned up to testify.

That the learned trial Magistrate failed in law by not seeing that the matter in question was not proved to the required standard of law hence violation of section 109 of the evidence act.

That the learned trial Magistrate failed to consider that his defence was reliable to create doubt upon the prosecution case hence the benefit of doubt ought to have been awarded to the appellant.

It is trite law that this being the first appellate court, its duty bound to reconsider the evidence, evaluate it and draw its own conclusions in order to satisfy itself that there is no failure of justice. In discharging this duty we bear I mind that we have not had the advantage of seeing and hearing the witnesses as trial court did. It is not enough for the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the trial court’s findings and conclusions. This position has been settled as per: See the cases;- SHANTILAL M. RUWALA VS. REPUBLIC 1975 EA 570, OKENO V. REPUBLIC 1972 EA 32, NGUI VS. REPUBLIC 1984 KLR 729 at page 730 par (20)

The Evidence adduced at the trial court

PW1 KILUNDA NDAMBO is the owner of the subject motorcycle. He was operating himself it as a boda boda rider. On the material day at around 11pm, he was from Kisumu Ndogo and followed the Kisimani/Ziwa la Ng’ombe route taking carrying two regular customers to Bombululu. On the way, passing through a field called Uwanja wa Bangi he saw four people standing along the road. He was able to see them because the motorcycle headlamps were on. Twenty meters after passing the group, two men blocked the road. PW1 slowed down and the two men grabbed his coat, and stuck him with a panga at the back of his head. A struggle ensued and eventually, the customers jumped off the motorcycle, PW1 sustained another cut on the left leg before he switched off the motorcycle, jumped off and ran away. He met up with the customers some distance away and alerted fellow boda boda riders of the robbery. About 15-20 riders came to his arid and went about to trace the robbers. PW1 was later called to Uwanja wa Bangi where the riders ha caught two men. He identified the 2nd appellant, dressed in a spotted t-shirt as the one who had blocked his way and held the motorcycle while the 2nd appellant, wearing a dark jacket, as the one who cut him with a panga. He had seen them clearly form the light of the headlamps and further identified them by the clothes they were wearing. A third person caught by the riders was released as PW1 did not identify him as having been involved n the robbery. PW1 then left the appellants with the riders as he sought medical attention. He later went to the police station, identified the appellants and recorded a statement. PW1 had seen the appellants pushing the motorcycle away as he fled but it was never recovered.

When cross-examined by the 2nd appellant, PW1 stated that although he had not known the 2nd appellant before, he had seen him very well, and he was found wearing the same clothes. The time between the attack and when he was arrested was too short to get other people with the same clothes. Moreover, the 2nd appellant was found with a motorcycle alarm remote in his pocket. To the 2nd appellant PW1 stated that he identified him from the clothes he was wearing and although he was not found with any of the stolen items, he had attacked PW1 from in front, giving him a good chance of seeing him as the motorcycle lamps were on. He had slowed down at first, thinking that the 2nd appellant was crossing the road, only to later realize that he was attacking him. That gave PW1 ample chance to see him clearly.

P.W.2 PAUL KIMANZI NGUNYI was one of the passengers on PW1’s motorcycle at the material time, seated at the back of the motorcycle. He stated that around Ziwa la Ng’ombe a man dressed in a spotted t-shirt came from one side of the road carrying a panga. Another person emerged and they blocked the road. The first person wanted to cut PW2, he jumped and PW1 was cut on the back of his head. PW2 got off the motorcycle and run away, leaving the two people struggling with PW1. He later saw another motorcycle which gave PW1 a chance to run away. He did not know whether the attackers took the motorcycle. PW1 met put with PW2 later and rang his colleagues. The colleagues came to the scene and two people were arrested. Although he had not seen their faces, he had seen their clothes well. He identified the appellants at the scene shortly after the attack and later at the station by the clothes they were wearing. When cross-examined by the 1st appellant, PW2 recognized him as a former worker at the hotel he managed. PW2 stated that he remembered the 1st appellant as being a cook at the hotel when he was younger, and who had been stealing items at the hotel before he was fired in 2006.

PW3 ANTHONY NGEI was the other passenger on PW1 motorcycle that night. He was seated at the middle. He narrated how on approaching Ziwa la Ng’ombe, they passed four people on the road, and about 5 meters ahead found 3 people. There were long flood lights in the area and he was able to see them. The four had been shouting for them to stop but they had not stopped. There were pot holes in the area, so they were not moving at high speed. One of the men came and held the motorcycle form behind while the other held it from the front. One held the headlamp and cut the rider with a panga and again on his leg when he fell down. The attacker was dressed in a blue jacket. The rider jumped off the motorcycle and ran away with the keys. PW3 also ran and they found another rider who assisted them. After running for about 10 meters, they came back but did not find the people or the motorcycle. PW1 was bleeding on the head and left leg. PW1 rang his boda boda colleagues and about 30 people came. The boda boda people found three people hiding in a field known as Uwanja wa Bangi. One of the robbers caught was short and black, and was the one wearing a jacket. Members of the public beat them up before the police came and rescued them. PW3 stated that he recognized one of the robbers by the jacket he wore.

PW4 DOCTOR LAWRENCE NGONE testified that he had examined PW1 for the filling of P3 form produced as exhibit 3. PW1 had come with a history of having been assaulted by four people on 8th August 2010. He had gone to Bandari Medical Clinic on that day and was found to be cut on the head and left leg and stitched. He came for the filling of the P3 two days late, and PW4 confirmed having seen the injuries and the stitches. He concluded that the injuries had been caused by a sharp object. He classified the injury as harm.

PW5 No.53029 CORPORAL JOHN MUMBO from Nyali police station stated that on 9th August 2010 at about 4. 30am the appellants were brought to the station by Corporal Mukoya and police constable Sirengeo. They were from hospital after being rescued from mob justice at Bombululu Uwanja wa Bangi. His investigations confirmed the account given by PW1. He obtained the details of the motorcycle produced the purchase receipt and log book form PW1. The motorcycle registration number KMCF 862K was however never recovered. He established that the appellants had been arrested about 15-20 minutes after the robbery. The scene of the robbery and the place they were arrested is about 100 meters apart. The appellants were not found with any weapons. The area they were found is a dangerous place at odd hours. It is field of about 3 acres and there are villages at the edges.

The appellant’s defence

On 4th October 2011 the court found that the appellants had a case to answer and put them on defence.

The first appellant John Maluki Mwanzia gave sworn evidence and had not witnesses. He state that he lives in Bombolulu and works as a mason. On 8th August 2010 he worked until 6. 30pm. He went home, had supper and at around 8. 30 escorted a friend to a funeral in the area. At around 9. 30pm he left his friend and was headed home when he met two police officers who stopped him and asked for his ID which he had left at home. He was arrested and taken to a police booth. At 11. 30pm a police motor vehicle came and took him and others to the station. He was asked to give a Ksh.500/= bribe but he did not have the money. He was later charged with the current offence. He denied any knowledge of the robbery. When cross-examined he claimed he was arrested along the road to Kisauni which about 1 km from Uwanja wa Bangi.

The 2nd appellant, Alex Musembi Musyimi gave sworn statement and had not witnesses. He stated that he was a fruit seller at Kongowea Market. On 7th August 2010 he went to the market as usual and finished at 12 noon. On his way home he met some people who started beating him and asking him for “his colleague”. He was placed with others who had been arrested and asked about a motorcycle knew nothing about. He was beaten up to 1 am when the police on patrol rescued him and took him to Makadara where he stayed till 4 am and taken to Nyali police station. He denied that he was hiding in a bush when he was arrested. He had on different clothes when he was at the market, and had changed at home. He had been walking from 4. 30pm to 8. 30pm when he was heading to his house close to Uwanja wa Bangi.

Trial court Judgment

Submissions by appellants on appeal

The first appellant, John Maluki submitted that the charge sheet was defective as it contradicted with the account given by PW1 and PW2 concerning the number of attackers who assaulted them. While the charge sheet alluded to the attackers being more than 3, PW1 is said to have testified of an attack by 2 people (page 7 lines 21-22 and page 8 line 20-21) and PW2 said that they were attacked by 3 people (page 12 lines 2 and 10. For this reason the charge sheet is defective and the evidence of the witnesses is discredited. The appellant complained that his constitutional right to a fair trial under Article 50(2)(j) had been breached because he was forced to proceed with the hearing of the case without having received all the witnesses statements. He submitted that identification had not been proved beyond reasonable doubt as required by law. The fact that PW1 and PW2 had not given the boda boda people a description of the attackers left a chance that this might have been a case of mistaken identity. Since the boda boda people were searching for unknown persons, they might have arrested innocent persons. PW1’s allegation that a motorcycle remote had been recovered from him was baseless, as no evidence was adduced to support it. In any event, the investigating officer PW5 confirmed that nothing had been recovered on the suspects.

The second appellant, Alex Musembi Musyimi submitted that the trial court failed to caution itself that the circumstances of their identification were not favourable for a proper identification to be made. The assailants were strangers to the complainant and the attack was brief and sudden executed in the night. The only light was the headlamp whose intensity was not established nor its distance in relation to the suspect (Charles Olinda Maitanyi vs. Republic) 1986 KLR 198. The failure by the prosecution to produce the clothes by which the appellants were identified was also cited. Further the manner in which they were arrested was question since the boda boda group arrested the appellant in the absence of the complainant, and it is not recorded that PW1 had given them the description of his attackers. The persons who arrested him were also not called to give their testimony. Finally the court was urged to consider that while it is said he was arrested shortly after the incident and within the vicinity, he was not found with any incriminating item on his possession. The motorcycle was not recovered, and he had no weapon. In highlighting his submissions, he added that on the material day, he had hawked oranges at Kongowea market form 8. 00am – 12noon. From 2. 00pm he was relaxing and selling goods at his kiosk. At 8. 00pm he closed the kiosk and was heading home when he met a group of people inquiring whether he had seen anybody pushing a motorcycle. This was about 100 metres away from the crime scene. They started to beat him up seeking answers to their inquiry. They beat him up asking on the whereabouts of the motorcycle. The police on patrol came by and took him to the station, and he was later charged.

Mr. Ogweno the state counsel for the Republic submitted and conceded the appeal on both conviction and sentence. Mr. Ogweno pointed out that the robbery took place at night. The system of lighting was not clear to aid for a positive identification of the assailants. He further submitted that it was not possible to rely on the testimony of PW1 as there is absolutely no basis for conceding that the circumstances, including light were conducive to positive identification.

Analysis and determination

We have given this appeal our careful consideration. We have evaluated the evidence by the prosecution and defence. It is plain from the record and evidence laid before us that the conviction of the appellants proceeded on the premises that the appellants were positively identified by PW1 as the robbers.

The learned trial Magistrate’s judgment in convicting the appellants stated as follows:

“…… There is no doubt that the complainant and the passenger PW2 clearly saw the men in their clothes as they attacked them and the arrest which came soon thereafter could not have been mistaken as it was only about 300 meters away where the accused were found hiding in the bush…. in totality I have considered the evidence and I am convinced that the two accused participated in the robbery. They were properly identified after they were flushed out by the boda boda group and their arrest could not have been mistaken… the motorcycle head lamps which were bright assisted the complainant and his passengers to clearly see them and identifying them from their attires soon after the attack was very positive in the circumstances”

We start at the point of identification of the appellants. The conviction of the appellants by the learned trial magistrate was based entirely on the evidence of identification which the appellants have challenged on the grounds set out on their petition of appeal. In essence their main complaint being that the trial court failed to analyse their evidence and that of the prosecution that the appellants were not present at the scene of the robbery.

It is trite law where the only evidence against an accused person is that of identification or recognition, the court has a duty to examine such evidence carefully and be satisfied the conditions for positive identification, favorable, free from error, before it can convict on such evidence.

The applicable law

A conviction resting entirely on identity invariably causes a degree of uneasiness. Lord Gardiner, L.C in the House of Lords observed as follows:

“There may be a case in which identity is in question and if any innocent people are convicted today I should think that nine cases out of ten- if they are many as ten- it is a question of identity”Blackstone’s Criminal Practice 1997 S F18 cites Masons posed by visual identification of suspects;

a. Some persons may have difficulty in distinguishing between different persons of only moderately similar appearance, and many witnesses to crimes are able to see perpetrators only fleetingly, often in very stressful circumstances;

b. Visual memory may fade with the passage of time;

AND

As is in the process of unconscious transference, a witness may confuse a face he recognized from the scene of the crime (it may be of an innocent person) with that of the offender.

It is also reported in Blackstone’s Criminal Practice 2015 at F18(2) that the mere description of the culprit of his clothing is not identification evidence even if it closely matches the appearance or clothing of the defendant. Gayle (1999) 2 CRAPP.R.130 in relying on identification evidence our courts have come up with legal principles and rules which must guide the prosecution presenting evidence at the trial court. The circumstances under which the identification took place must be explained.

The source of light where the offence occurred at night the intensity of the light must also be explained. The position and distance of the identifying witness visa vise the suspect being identified. The identifying witness must give the physical description of the assailants as seen at the time of the robbery. The source of light its size and its position relative to the suspect. This was discussed in the case of SIMUYU & ANOTHER VS. REPUBLIC (2005)KLR 192;

“In every case in which there is a question as to the identity of the accused, the fact of there being a description given and the terms of that description are matters of the highest importanceof which evidence ought always to be given first of all by person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given”.

In this case PW1 and PW2 claimed that they identified the appellants in the course of the robbery by nature of their clothing. The incident took place at night. PW1 and PW2 were riding a motorcycle in motion. They saw the alleged two people ahead of them. They claim that through the motorcycle lamp and street lights they saw them clearly.

However in the present case there was no inquiry as to the intensity and brightness of the source of light, the distance between the position of appellants and that of PW1 and PW2. The time taken and opportunity for the witnesses to capture impression of color, design and physical features of the clothing. There is no evidence that the witnesses had met the appellants before the robbery.

The motorcycle subject matter of this robbery was not recovered neither was the panga which had been used against the complainant. Their identification by clothing was the main reason for facing the charge of robbery with violence. The police did not conduct an identification parade to test the velacity and accuracy of PW1 and PW2 evidence.

This appeal turns on the correct visual identification of the appellants as perpetrators of the offence for which they were convicted and sentenced to death. In a case such as this one where the trial court relied on identification whose accuracy had not been tested in as stated herein above, the trial learned Magistrate should before convicting in reliance on the correctness of identification, warn himself of the special need for caution. He must give reason for such a need bringing out in his own way that a mistaken witness can be convincing one and that a number of such witnesses can all be mistaken.

As was held by the court of appeal in Peter Kimani Maina in CR appeal No. 1111 of 2003 pg3, before the court can base a conviction of identification at night, such evidence should be watertight.

See the case of Persuasive authority- REGINA V. TURNBULL & ANOTHER 1977 1QB.224. The underlying principle is the special need for caution when the issue turns on visual identification evidence and the practice has to be the exercise of care which not only contains a warning bill also exposes weakness and dangers of such evidence in circumstances of a particular case.

The appellants gave their testimony and explained the sequence of events and subsequent arrest in rebuttal to the prosecution case. The first appellant adduced evidence that on the material day while on his way home he was arrested by a group of people, beaten up and told asked the whereabouts of a stolen motorcycle. He denied any such knowledge of the offence or the motorcycle. He denied that he was hiding in the bush as alleged by the prosecution. The second appellant also gave evidence that around 9. 30pm on his way home he was stopped by police officers who asked for an ID or identification document which he did not have. He was arrested and charged with the present offence. There is no dispute, the appellants were not arrested with the motorcycle nor the panga used in the robbery. The purported arrest in the bush occurred soon thereafter the said robbery. The question which linger on our mings, why should the appellants hide 300metres away from the crime scene when they could have driven away with the stolen motorcycle? Analyzing the evidence by the prosecution and the defence there’s no credible evidence in our analysis that the two were hiding in the bush or walking to the respective from different locations.

The learned trial magistrate should have given critical consideration in view of the only evidence available was that of visual identification.

There is sufficient doubt in our minds as to whether the appellants were properly identified by prosecution witnesses beyond reasonable doubt. The doubts on identification evidence we have entertained should have been resolved in favor of the appellants.

On the totality of the evidence evaluation and analysis of the Legal authorities, we are satisfied that identification evidence upon which the appellant’s conviction was based was not shown to have been free from mistake or possibility of error.

The upshot is therefore that conviction and sentence against the appellants is not supported by credible and cogent evidence. The learned state counsel did not support the appeal. We accordingly order the appeals against conviction and sentence be allowed. The appellants are ordered set free forthwith unless otherwise lawfully held.

Dated, signed and delivered in open court at Mombasa this 30th day of September 2015.

……………………… ……………………….

D. CHEPKWONY R. NYAKUNDI

JUDGEJUDGE

Present:

State counsel

Appellant