[2017] KEHC 4586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 26 OF 2015

[consolidating CR. appeal Nos.27,28, 29&31 of 2015]

1. JOHN ODHIAMBO OLUOCH

2. BONIFACE ACHAWA NYANGWESO

3. ALI MUSA ALIAS JUNIOR

4. SILVIA AKISA AWUOR

5. JANE AUMA AYAYA

6. LYDIA NYANGAI ATILA......................................APPELLANTS

VERSUS

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

(From the original conviction and sentence in criminal case No. 1873 of 2014 of the Chief Magistrate’s Court at Busia by Hon. H.N Ndung'u – Chief Magistrate.)

JUDGMENT

JOHN ODHIAMBO OLUOCH, BONIFACE ACHAWA NYANGWESO, ALI MUSA ALIAS JUNIOR, SILVIA AKISA AWUOR, JANE AUMA AYAYAandLYDIA NYANGAI ATILA,the appellants herein, were convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code.

The particulars of the offence were that on the 9th August 2014 atSULTANAin Township location, withinBUSIA County, jointly while armed with clubs robbed CLINTON FUNDI MUDE of a motor cycle registration number KMDC 959 D valued at Kshs. 93,000/= and during the time of the said robbery, used actual violence to the said CLINTON FUNDI MUDE.

They were each sentenced to suffer death as provided for by the law. They have now appealed against both conviction and sentence.

The first appellant was represented by Mr. Ashioya, learned counsel. Mr. Marisio Luchivya learned counsel represented 5th and 6th appellants. The 2nd and 3rd appellants were in person. I have summarized the grounds of appeal they raised as follows:

1. That the learned trial magistrate erred in law and in fact by convicting on a defective charge.

2. That the learned trial magistrate erred in law and in fact by convicting the appellants on the basis of purported inadmissible confession.

3. That the learned trial magistrate erred in law and in fact by failing to appreciate that the circumstances obtaining at the time of the offence were not conducive for a positive identification.

4. That the learned trial magistrate erred in law and in fact by convicting without sufficient evidence.

The state opposed the appeal through Mr. Gacharia, the learned counsel.

The facts of the prosecution case were briefly as follows:

On the material date at between 11 p.m and midnight, the complainant was hired by some three women who wanted to be taken to Busia County Hospital. When they reached at the gate of the hospital, they talked with a security guard who informed them that the patient they were going to check on, had been released. They therefore asked him to take them to Sultana. At Sultana they were joined by some men who robbed him of the motor cycle.

All the appellants denied the offence and each one of them gave an account of how the arrest was effected.

This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

It was contended for the fifth and the sixth appellants that the charge was defective. I have perused the charge and I do not see the basis for the complaint. This ground is dismissed.

The appellants argued that the learned trial magistrate convicted them on the basis of illegal confessions. What is a confession? A confession is defined under section 25 of the Evidence Act in the following terms:

A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

In the instant case, I find that the learned trial magistrate erred in admitting in evidence purported confessions in the evidence of DAVID ODUOR ONYANGO(P.W 3) who narrated what accused 4, accused 5 and Motogo allegedly said during interrogation by the police. The court equally erred when the evidence of PC CHARLES NYAMBANE (PW4) whose evidence had instances of purported confessions was admitted without expunging the confessions. Section 25A (1) of the Evidence Act has limited the persons who can take a confession from a suspect in the following terms:

A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.

PC CHARLES NYAMBANE (PW4) andDAVID ODUOR ONYANGO(P.W 3) are not in the category of the people envisaged under the section to take confessions. Their evidence of the purported confessions was illegal and inadmissible.

CLINTON FUNDI MUDE (P.W1) was robbed at about midnight. Before the robbery, he had ferried some three ladies to Busia Hospital and then later to the place where he was robbed. He testified that he was able to identify the trio and the men who later joined them in the robbery. When circumstances obtaining at the time of commission of an offence are not favourable, care must be taken before a conviction can be made. Lord Widgery CJ in the case of R vs. TURNBULL AND OTHERS - [1976] 3 All ER549 gave the following directions:

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.

I will therefore apply the test prescribed by Lord Widgery to establish whether the purported identification by the complainant was free from error. Let us start at the beginning. CLINTON testified that at Shreeji Petrol Station he was stopped by some three ladies who asked him to take them to Busia District Hospital. The place had street lights. Evidence was not adduced as to how long he had the three ladies under observation before they boarded his motor cycle. In his testimony he did not say what made him to identify them later. The finding by the trial magistrate that she believed that the appearances of 4th to 6th appellants were still fresh in the complainant's mind was not supported by any facts. There was no attempt whatsoever by the complainant to describe any of the ladies before they were arrested.

At Sultana where the robbery took place, he saw some three men emerge from a dark path. These men had clubs and they were the ones who robbed him. A struggle ensued and he was robbed but he managed to escape. Later, he was told by the police that one of the men had been arrested. He had not given the description of any of his assailants. When he later, in his evidence, claims to have been able to identify the three men, one is left wondering how this was possible. He makes a justification by making a claim that there was light and that the incident took about five minutes before he ran away. This contradicted his earlier evidence that the men approached him from a dark path. From his earlier description of the incident, it could not have taken more than two minutes at most. He was struggling to free himself from the ladies as he was being attacked with clubs. I make a finding that in the circumstances, he was not in a position to identify any of his attackers.

From the foregoing analysis of the evidence on record, I find that the conviction of the appellants was unsafe. I accordingly quash the conviction and set aside the sentence. Each appellant is set at liberty unless if otherwise lawfully held.

DELIVEREDandSIGNEDatBUSIA this 12thdayof July, 2017

KIARIE WAWERU KIARIE

JUDGE