[2017] KEHC 1427 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 62 OF 2014

JOSEPH MUTHEE KAGO……..…… ……………………….APPELLANT

-VERSUS-

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

(An appeal from the conviction and sentence of the Chief Magistrate’s Court (K. K. Cheruiyot) at Kerugoya, Criminal

Case No. 47 of 2013 delivered on 13th December, 2014)

JUDGMENT

1. The appellant Joseph Muthee Kago was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, three counts in Criminal Case No. 47 of 2013 in the Chief Magistrate’s Court at Kerugoya. After a full trial the Appellant was found guilty and was convicted. He was sentenced to death as provided under the Law.

2. The appellant was dissatisfied with the conviction and sentence and filed this appeal raising the following grounds:

(i) That the lower court erred in law in affirming conviction and sentence on the basis among other issues on identification under unfavourable circumstances in identification parade that failed to conform to non-provisions of the law and further material witness were not brought to support the theory in question.

(ii) That the magistrate erred in law and fact by invoking the doctrine of recent possession and yet the prosecution failed to prove that I had physical possession of mobile phones and three items alleged to be recovered in my house.

(iii) That the trial court fell into error when it convicted I the appellant on the basis of DNA analysis contrary to section 65 of Evidence Act and further by relying on the P3 form which was at variance with injuries sustained by P.W.1.

(iv) That the learned magistrate equally fell into error in failing to consider my credible statement that displaced the reliability of the prosecution case.

(v) That the magistrate erred in law in affirming conviction and sentence by failing to consider that I was held in custody for long period contrary to the constitution.

3. The Appellant was charged with two others who were acquitted by the trial court.

4. The facts of the case are that there are three complainants. It all started on the night of 23rd January,2013 when two lovers were on their way home. It was about 9. 45 p.m. when the complainants on the 1st and 2nd counts, that is, Benard Mwaniki Njage alias Maina Njathe (P.W. 2) and Charity Muthoni (P.W. 3), were on the way home. The two saw four men who were ahead of them. The four men ordered P.W. 2 and 3 to sit down and demanded money and mobile phones. Charity Muthoni (P.W.3 gave the four men some money and they took her mobile phone make Nokia 6020 MF1-10 (exhibit 10). P.W. 2 Benard Mwaniki Njage was robbed a wallet containing Ksh.2400/= and a mobile phone. He was led to a farm where he was hit on the head with an axe and left for dead. He lost consciousness. In the meantime the attackers removed the bra and pant of P.W. 3 which they cut then used them to tie her mouth and eyes. The robbers proceeded to the home of the 3rd complainant Roman Kariuki (P.W. 1). Charity Muthoni (P.W. 2) was left at the gate with one of the robbers while the other three went to the house of P.W.1. They broke into the house at around 1. 40 a.m. where they found P.W. 1 and members of his family. They were armed with axes, panga and used bright torches. They beat P.W. 1 and demanded money while threatening to kill him. They were given Ksh.20,000/= and stole four mobile phones make Nokia 2300 (MF1-2) exhibit 2, Nokia 1100, (mf1 3), exhibit 3, Nokia CCIT and Motorolla 119. The last two were not recovered. They also stole a wallet, (MF1-4) exhibit 4 and left. P.W. 1 screamed and neighbours went to his rescue. The robbers escaped. The P.W. 3 who was at P.W. 1’s gate reported her ordeal. They went and found P.W. 2 in a farm while unconscious. He was escorted to Mount Kenya Hospital where he was admitted. P.W. 1 managed to identify the appellant during the robbery as he knew him before. The matter was reported to the Police. The P.W.1 was referred to hospital for treatment ad was also issued a P.3 form. The Police went to the complainant’s home the same night with a Police dog. The dog led them to the house of the appellant. A search was conducted and Police recovered two axes and one was bloodstained. They also recovered two pangas. They also recovered seven mobile phones. The Police made an inventory of the recovered items, exhibit 19. The appellant was arrested. He led Police to the home of his accomplices. The complainants were called and they identified their respective mobile phones from those recovered from the house of the appellant. The blood stained axe and the jacket which P.W. 2 had worn during the attack were sent to the government chemist for analysis. A report confirmed that the axe exhibit 9 was stained with the blood of P.W. 2 which was also found on his jacket. The government analyst report exhibit 14 was produced in court by Lawrence Kinyua Muthui. An identification parade was conducted by Inspector John Kiprop (P.W. 6). The appellant was identified from the parade by P.W.I. The parade forms were produced as exhibit 15c. The appellant was then charged with these offences.

5. This being a first appeal, I have a duty to analyse the evidence and come up with an independent finding but bearing in mind that the trial magistrate had the benefit to see the witnesses and observe their demeanor and leave room for that. This was so held in the case of Okeno -V- R 1972 E.A. 32.

6. The key witnesses were P.W. 1, 2, 3 and P.W. 7. According to P.W. 1 they were attacked by robbers at about 1. 40 a.m. He testified that three robbers broke and entered the house while armed with axes and pangas. They also had bright torches. They demanded money and threatened to kill him. His wife gave them Ksh.20,000/- and the robbers stole mobile phones. P.W. 1 testified he managed to recognize the appellant who he knew before as the robbers had bright torches which they flashed in the house while the appellant was ransacking the drawers. I am of the view that with bright torches being flashed all over the house, there was enough light which could have enabled P.W. 1 to recognize a person who he knew. Upon arrest of the appellants on the same night, several mobile phones were recovered. P.W. 1 identified two of his mobile phones from among the ones recovered from the appellant. These were Nokia 2300 MF1-2 and Nokia 1100-MF1-3 produced as exhibit 2 and 3. The appellant laid no claim on the mobile phones which P.W. 1 identified. P.W. 1 also identified the appellant from an identification parade. Evidence of PW. 1 proves beyond any reasonable doubts that he was robbed on the material night. The evidence points at the appellant as the culprit by the facts that he was recognized during the robbery and was arrested with the stolen properties of the complainant so soon after they were stolen. The doctrine of recent possession of stolen properties comes in. The inference to be drawn is that he had the stolen mobile phones after robbing the complainant. In his defence the appellant admitted that he was known to the complainant (P.W. 1). He could therefore not have failed to recognize him. The fact of the robbery was corroborated by the testimony of P.W. 3 Charity Muthoni who testified that three robbers entered the house of P.W. 1 while one was left guarding her at the gate. The evidence that the appellant was arrested with two pangas and two axes one of which was bloodstained proves that he participated in the robbery. I am of the view that there is overwhelming evidence to prove that the appellant robbed P.W. 1.

7. On the 1st and 2nd count, P.W. 2 and P.W. 3 testified on how they were robbed by four men who seriously injured P.W. 2. P.W.2 and 3 did not identify the robbers but the prosecution adduced evidence which sufficiently linked the appellant to the offences. The first is the doctrine of recent possession as the appellant was found with the mobile phone which was stolen from P.W. 3 so soon after it was stolen. P.W. 3 identified the phone Nokia 6020, MF1-10, (exhibit 10), from among the seven phones recovered from the house of the appellant. The appellant laid no claim on the mobile phone and I therefore have no reason to doubt that it belonged to P.W. 3. Secondly the prosecution adduced evidence that the P.W.2 was struck on the head with an axe and sustained serious injuries on the material night. He was admitted in hospital and was unconscious for some days. P.W. 2 identified the discharge summary and the P.3 form MF1-7 and 8 though they were not produced in Court as exhibit. The Police recovered a bloodstained axe from the house of the appellant. A government analyst P.W. 5 Lawrence Kinyua Muthui found that the axe was stained with blood of P.W. 2. These facts link the appellant to the offences in Count 2 and 3.

8. P.W. 7 Police Constable Joseph Muya testified on how he received the report and went to the scene with a Police dog which led them to the house of the appellant. He recovered the mobile phones which, some were later identified by P.W. 1 and 3. He also recovered a blood stained axe, exhibit 9 which he forwarded to the Government Chemist for analysis P.W. 5 confirming that the axe was stained with the blood of P.W. 2.

9. From the foregoing, I am of the view that the evidence adduced by the prosecution was overwhelming and proves that the Appellant participated in the robberies and was rightly convicted.

10. The issues which arise from the grounds of appeal are as follows:

11. Identification Parade:

The Appellant’s contention is that none of the complainants picked him from the identification parade. That if a suspect is known to the witness there is no need for a parade. That the identification parade was null and void as it was not conducted as per chapter 46, Forces Standing Orders.

12. In his submission Mr. D. D. Sitati prosecution counsel for the State submits that the parade was proper. That P.W. 6 John Kiprop the officer who conducted the identification parade confirmed to the Court that the parade was conducted in conformity to the requirements under Forces Standing Orders. Nine (9) participants of equal body height and structure including the Appellant were paraded in front of the witnesses. The Appellant was given right to choose where to stand, which he did very well. When it was the turn for P.W. 1, the Appellant stood between member number 2 and 3. The P.W. 1 was able to identify being a person who was well known to him. That the Appellant was satisfied with the way the parade was conducted and he signed the identification parade form exhibit 15A. He submits that the contention by the Appellant is an afterthought.

13. The parade form exhibit 15A shows that the Appellant stated that he was satisfied with the way the parade was conducted. He stated that the two witnesses knew him very well. There are no basis to doubt that the parade was conducted as provided under the Forces Standing Orders as testified by P.W. 6. Identification parade procedures are regulated by Police Force Standing Orders under National Police Service Act 2011. The procedure is as follows:

(a) “The accused has the right to have an advocate or friend present at the parade;

(b) The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness;

(c) Witnesses should be shown the parade separately and should not discuss the parade among themselves;

(d) The number of suspects in the parade should be eight (or 10 in the case of two suspects);

(e) All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race;

(f) Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; and

(g) As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.”

The parade officer P.W. 6 in his testimony proved that he followed the laid down procedures. The suspect was satisfied. There is no dispute that the appellant was known to the witnesses. P.W. 1 testified that he recognized the Appellant since he knew him before this incident and was able to identify him in the identification parade. The identification parade is conducted for a person to try and identify the person who committed a crime. To this end, since the complainant identified the Appellant from the parade as one of the people who robbed, the purpose of conducting the parade was achieved. However since the Appellant was known to the P.W.1, it was not absolutely necessary to conduct the parade. Since the parade was conducted, it eliminates any possibility of mistake as to the person who committed the crime. It also strengthens the evidence of the complainant coupled with the fact that the Appellant was found with the properties of the complainants soon after they were stolen. I find that these grounds hold no weight and must fail.

2. Crucial witnesses were not called

The Appellant states that the wife of P.W. 1 who gave the robbers cash, neighbours who came to his rescue and the driver who took him to hospital. That the relatives of P.W. 2 who were issued with his discharge summary and the P. 3 form. Those who went to rescue P.W. 3. It is trite law that no particular number of witnesses is required to prove a case. It is submitted by the prosecution that it is the preserve of the prosecution to call or not to call witnesses. That there are several reasons why relevant witnesses are not called. That is to say, the witness is not compellable, prolonged unavailability occasion delay, and infringing the rights of the Appellant and relevance of the testimony. The State submits that the witnesses who were availed to Court were witnesses who gave relevant testimony which was sufficient to prove the prosecution’s case against the Appellant.

Section 143 of the Evidence Act provides:

“No particular number of witnesses shall in the absence of any provision of the law to the contrary be required for proof of any fact.”

In my consideration of the evidence adduced as analysed above shows that the witnesses called were sufficient to prove the charges against the Appellant. In the case of Alex Lichua Lichodo -V- Republic (2015) eKLR it was held:

“On the subject of whether the prosecutor failed to call crucial witnesses, we do concur with the trial court and the 1st appellate court that the evidence of the complainant was sufficient and convincing that there was no need for the prosecution to call any more witnesses on the said issue.”

The evidence of P.W. 1 was sufficient to prove the fact of the robbery and what was robbed. The fact of the robbery on P.W. 1 was corroborated by the testimony of P.W. 3. The neighbours and the driver came after the robbery. Their evidence would not add any weight. There is nothing on record to show why the wife of P.W. 1 was not called but as stated by the prosecutor, many factors could have contributed to her not being called. It is not alleged that any of the alleged witnesses would have given evidence which would have been adverse to the prosecution case. I am of the opinion that the evidence of P.W. 1 was sufficient, convincing and was well corroborated. The evidence was sufficient to convict the Appellant and there was no need for the prosecution to call more witnesses. This ground must fail.

14. 3. Doctrine of recent Possession

The Court invoked the doctrine as the Appellant was found in possession of the stolen properties of the complainants who were robbed on the material night. P.W. 7 p.c. Joseph Muya and his colleagues went to the house of the Appellant just hours after the robberies were committed. The Appellant was found with among other items, seven mobile phones as shown on the inventory exhibit 20. From among the mobile phones, Nokia 2300, exhibit 2 was identified by P.W. 1 as his which was stolen during the robbery, Nokia 1100, exhibit P3 also belonging to P.W. 1, Nokia 6020 exhibit 10 belonging to P.W. 3 and a wallet, exhibit 4 belonging to (P.W. 1). P.W. 2 testified that the people who attacked them were armed with axes and pangas. The Appellant was found with a bloodstained axe, one other axe, one panga, a sledge hammer and a club. This shows that the Appellant was armed as testified by the witnesses and indeed one axe was confirmed to have been stained with the blood of one of the complainants (P.W. 2). This evidence of possession of stolen properties so soon after they were stolen and possession of weapons is sufficient to convict the Appellant. In the case of David Mutune Nzongo -V- Republic (2014) eKLR the Court Appeal while dealing with the issue of burden of proof in respect of the doctrine of recent possession stated:

“It is important to note that even though the High Court made a finding that the evidence on identification with regard to the appellant and co-accused was not sufficient, the evidence of recent possession alone is sufficient for the conviction of the appellant. In the case of Douglas Sila Mutuku & 2 others v Republic [2014] eKLR the Court of Appeal held that:

“Although none of the witnesses identified the 3rd appellant, the fact that shortly after the robbery, he was found in possession of some of the items stolen from the victims there is a rebuttable presumption of fact under Section 119 of the Evidence Act, that the he was either the robber or a guilty receiver, unless he offers a reasonable explanation as to his possession of those items.”

The Court of Appeal has stated that recent possession can form a basis of conviction in a criminal case. In the case of Erick Otieno Arum -V- R (2006) eKLR the Court of Appeal stated:

“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant.”

There is sufficient evidence to convict the Appellant as he was found in possession of the stolen items of the complainants P.W. 1 and P.W. 3 soon after they were stolen as I have indicated above. He was identified from the parade and the blood-stained axe connects him to the robbery and injury of P.W. 2 as shown on exhibit 14. The prosecution has proved beyond any reasonable doubts that the properties recovered from the Appellant were violently robbed from the complainants on that material night. Though the Appellant states that there were discrepancies as P.W. 1 said he identified Nokia 2300 and Nokia 400, there was no discrepancy. It is a typing error. I have looked at the handwritten proceedings and they show Nokia 1100. P.W. 7 testified that he recovered Nokia 1100 which was produced as exhibit 3 and is on the inventory. P.W. 7 testified that the Appellant refused to sign the inventory. The submission by the Appellant does not hold any water. There are no discrepancies as to what was recovered from the Appellant’s house and identified by P.W. 1 and P.W. 3.

15. 4. D.N.A. Analysis

The Appellant submits that there was no basis of convicting him on the basis of D.N.A. report in contravention of Section 65 of the Evidence Act and relying on the P3 form which was at variance with injuries sustained. The D.N.A. was to confirm whether the blood stains on the axe which was recovered from the house of Appellant exhibit I was used for the robbery against P.W. 1, 2 and 3. The report by P.W. 5, exhibit 14 confirmed that the axe was stained with the blood of P.W. 2. This confirms that the axe was used as weapon to commit the robberies and in particular to injure P.W. 2. The testimony by P.W. 2 is that he was hit on the head and he was beaten until he became unconscious. The Appellant offered no explanation to this occurrence other than the general denial. The fact that the axe exhibit 1 which was recovered from the house of the appellant had blood stains of P.W. 2 who was injured during a robbery on him the same night that it was recovered from his house leads to the reasonable conclusion that he is the one who jointly with others, robbed the P.W. 2. In the case of Lowayakaru Ejuroto Elimlim -V- R (2008) eKLRthe Court of Appeal held:

“The police successfully lifted blood samples from the scene which matched the appellant’s blood. The appellant owed the court a duty to explain how his blood came to be at the scene of the three robberies. The duty is cast on him pursuant to the provisions of section 111 of the Evidence Act. The presence of his blood at the scene places the appellant at the scene and raises a rebuttable presumption of fact that the appellant was one of the two people who attacked the deceased and his party. The appellant did not offer any explanation to rebut that presumption. He merely denied he was at the scene.”

P.W. 2 identified his Jacket which he was wearing on the material night and it was blood stained. This proves that he sustained injuries. After the injury he was unconscious for some time while in hospital. This is proof of injury contrary to what is submitted by the Appellant. It is not in dispute that it is the jacket he was wearing on the material night.

16. 5. Violation of Constitutional rights

The appellant submits that he was held in Police custody for more than 24 hours in contravention of Article 49 (1) (F) of the Constitution. The record shows that the Appellant was arrested on 24th January, 2013 and arraigned in Court on 1st February, 2013. Article 49 (1) (f) of the Constitution provides:

“An arrested person has the right –

to be brought before a court as soon as reasonably possible but not later than –

(h) Twenty four hours after being arrested; or

(i) If twenty four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.”

According to P.W. 7 the Appellant was taken to Court for the first time on 24th January, 2013 and the second time on 1st February, 2013. He produced an affidavit in Miscellaneous Application No. 10 of 2013 which was produced as exhibit 19. This shows that the Appellant was taken to Court as soon as it was practicable and the Police were allowed to detain him for seven days. He was then produced in Court on 1st February, 2013 when plea was taken. There was no violation. The ground must fail.

17. The prosecution had the burden to prove the charges against the Appellant beyond any reasonable doubts. Section 296 (2) of the Penal code provides:

“The ingredients of the offence of robbery with violence were further elaborated by the Court of Appeal in the case of Oluoch vs. Republic (1985) KLR where it was held that robbery with violence is committed in any of the following circumstances:

“(a) The offender is armed with any dangerous and offensive weapon or instrument; or

(b) The offender is in company with one or more person or persons; or;

(c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to an person……..” emphasis supplied.

The use of the word “or” implies that if any of the three conditions is fulfilled then the offence would be said to have been committed.”

From the evidence adduced by the three prosecution witnesses, P.W. 1, 2 and 3 it is proved beyond doubts that the Appellant was in company of three other men, they were armed with dangerous and offensive weapons namely pangas, axes and clubs when they robbed the mobile phones and money. They also inflicted injuries on the victims. All the ingredients of the offence of robbery with violence were proved beyond any reasonable doubts. The grounds of appeal must fail. The defence was not plausible. Though he alleges a grudge with the P.C. Muya (P.W. 7) who he alleges had arrested him before for possessing, the Appellant was positively identified by P.W. 1 during the robbery and the possession by Appellant of an axe stained with the blood of P.W. 2 places him at the scene of the robbery. In conclusion I find that the charges were proved beyond any reasonable doubts. The appeal must fail. I dismiss the appeal.

Dated and delivered at Kerugoya this 2nd day of November, 2017.

L. W. GITARI

JUDGE

Read out in open court, in the presence of Mr. Omayo prosecution counsel for the State, Appellant present, court assistant Naomi Murage this 2nd day of November, 2017.

L. W. GITARI

JUDGE

2. 11. 2017