[2017] KEHC 3147 (KLR)

IN THE HIGH COURT AT KAKAMEGA

CRIMINAL APPEAL NO. 194 OF 2013

BETWEEN

JOSEPH ALEKANA ……………....…………..………… APPELLANT

AND

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

(Being an appeal from the original conviction and sentence of Hon.H. Wandere, PM dated

on 13th August 2013 in Criminal Case No. 1092 of 2012 at Senior Principal Magistrate’s

Court at Mumias)

JUDGMENT

1. Before the subordinate court, the appellant, JOSEPH ALEKANA, was charged with two counts of robbery contrary to section 296(1) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offence were that on 27th December 2012 at Ingusi Village, Eshikalame Sub-location, Eshikalame Location within Mumias District of Kakamega County, he, with others not before the court, robbed Rispa Makaka of Kshs. 600/- and immediately before the time of such robbery threatened to use actual violence on the said Rispa Makaka.

2. The second count alleged that on the same night and at the same location, the appellant with others not before the court, robbed Rosemary Anyango Wetta of Kshs. 500/- and immediately before the time of such robbery threatened actual violence on the said Rosemary Anyango Wetta. The appellant denied the charges but after a full trial, he was convicted and sentenced to 7 years’ imprisonment.

3. The appellant now appeals against conviction and sentence on the grounds set out in the petition of appeal filed on 23rd October 2013. He also filed written submissions to support his case. The appellant attacked the judgment on the ground that the trial magistrate did not consider the initial report made to the police which did not the people who robbed them. He complained that he was not found with any stolen item. He further submitted that there was no evidence to show that he was identified as an attacker, that the whole case was motivated by malice and that essential witnesses were not called to testify.

4. Counsel for the respondent, Mr Ng’etich opposed the appeal and submitted that the prosecution case was based on voice recognition and the totality of circumstances were favourable to positive identification of the appellant.

5. As this is the first appeal, I am enjoined to consider the entire evidence, evaluate it and reach an independent conclusion as to whether I should uphold the conviction bearing in mind that I neither heard nor saw the witnesses testify (see Okeno v Republic[1972] EA 32). The prosecution evidence was supported by three witnesses and was as follows.

6. Rispa Makaka (PW 1) told the court that on the material night she was awoken by voices outside her house. One of the persons, who identified himself as a police officer, told her to open the door. She identified the voice as that of the appellant whom she knew as he was the son of her husband’s cousin and who used to visit her husband from time to time. Before she could open the door, the assailant kicked the door open and entered the room and demanded money. She told him to take Kshs. 600/- from the drawer which he took and left. On the following day, she reported the matter to the Assistant Chief and was referred to Musanda Police Station where she made her complaint.

7. Rosemary Anyango Wetta (PW 2) told the court that one the same night, while asleep in her house, she was awoken by a kick on the door. She then heard someone say, “open, we are police.” She recognised the appellant’s voice as he was the son to her husband’s brother. Since she knew him she decided to open the window and was able to see the accused who had a torch which he shorn. She did not recognise other people who were with him. She asked him what they wanted but he threatened to break the door if she did not open it and give him the money she had. She further told the court that when she heard the appellant call her to open the door, she lit a tin lamp. The appellant entered the house and threatened to her with panga, she removed Kshs. 500/- and gave him and they left. The Assistant Chief referred her to the police when she reported to him the incident on the next day.

8. The third and final prosecution witness was PC Andrew Omurioi (PW 3) who recalled that he was assisting PC Odongo in investigating the matter. He recalled that on 28th December 2012 at about 11. 00am while he was on patrol, a village elder brought PW 1 and PW 2 to report that they were attacked by certain people who claimed to be police officers looking for chang’aa. He visited PW 1’s home and found that the door had indeed been broken. He testified that the appellant was apprehended with the help of the Chief.

9. When put on his defence, the appellant gave sworn testimony. The tenor of his case was that he framed by the Assistant Chief with whom he had a dispute which was evidenced by correspondence sent to the Assistant Chief by his Advocates. On 29th December 2012, at about 4. 00pm, when he was returning home from work he went the Assistant Chief with police officers, who arrested him and took him the police station without informing him of the charges against him. He accused the Assistant Chief of using the complainants to lodge a false case against him.

10. I have no doubt from the testimony of PW 1 and PW 2 and PW 3 that they were robbed of their money on the material night. Their testimony was credible and confirmed by the fact that they reported the incident on the very next day. The key question before this court is whether the appellant was one of the persons identified as an assailant. The evidence against is appellant is that identification and voice recognition in difficult circumstances. There is ample jurisprudence on the manner which the court should approach such evidence.

11. In Cleopas Otieno Wamunga v Republic[1989] KLR 424, the Court of Appeal sounded a word of caution in matters of identification of suspects at night so as to avoid possible miscarriage of justice through mistaken identity. The Court urged careful examination of evidence in order to minimize risk of error which is possible even in the case of relatives or friends. In Anjononi & Others v Republic[1980] KLR 59, the Court of Appeal noted that the evidence of recognition of a suspect is more assuring and reliable that the identification of a stranger but it nevertheless must be examined because mistakes can also be made.

12. The same principles apply to voice recognition. In Choge v R[1985] KLR 1, the Court of Appeal held that evidence of voice identification is receivable and admissible and it can, depending on the circumstances, carry as much weight as visual identification. The Court urged that in receiving such evidence, care and caution should be exercised to ensure that the witness was familiar with the appellant’s voice and recognized it and that the conditions obtaining at the time the recognition made were such that there was no mistake in testifying to that which was said and who had said it. In Karani v R[1985] KLR 290, 293 the Court observed that:

Identification by voice nearly always amounts to identification by recognition. Yet here as in any other cases care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring safe identification.

13. The appellant was not a stranger to PW 1 and PW 2. He was related to PW 1 as her husband’s cousin and to PW 2 he was the son of her husband’s brother. They both testified that they had known him for some time and recognised his voice when he pretended to be a police officer. As regards PW 1, the appellant even spoke to her when he entered the house. Since his voice was familiar to PW 2, she even opened the window to find out what the appellant and assailants wanted. After the ordeal, both complainant reported the incident to the Assistant Chief who referred them to the police where they name him.

14. In addition, both complainant also gave evidence of visual identification. PW 1 stated in cross-examination that she was able to see the appellant as he had a torch was moving with it while demanding money from her. PW 2 told the court that she was able to see him when he entered the house which was lit with a tin lamp.

15. Given the familiarity of the appellant and the complainants, the time taken for interaction in the respective houses where the appellant demanded money, the fact that they reported him on the very next day provide assurance that both the voice and visual recognition in the circumstances outline provided the conditions favourable for positive recognition of the appellant.

16. The appellant’s contention that he was framed is not borne out by the evidence. PW 1 and PW 2 were very resolute when cross-examined that they knew nothing about his dispute with the Assistant Chief. The fact that he was not called does not undermine the prosecution case as he is the one who referred PW 1 and PW 2 to the police the very next day after the incident. I am satisfied that the appellant’s conviction was safe. It is affirmed.

17. After conviction the trial magistrate sentenced the appellant to 7 years’ imprisonment. Since the appellant was charged with two counts, she ought to have imposed the sentence on each count. I therefore set aside the sentence and substitute it with a sentence of 7 years’ imprisonment on each count. The sentences shall run concurrently from the date of sentence.

18. Save for the sentence, the appeal is dismissed.

DATED and DELIVERED at KAKAMEGA this 1st day of September 2017.

D.S. MAJANJA

JUDGE

Appellant in person.

Mr Ng’etich, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.