[2018] KEHC 4521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO 131 OF 2017

JOSEPH MWAURA MUTHONI...................APPELLANT

VERSUS

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

(From original conviction and sentence in Criminal Case

Number 899 of 2013in theChief Magistrate’s Court at Thika

by Hon C.A. Otieno- Omondi (PM) on 20th April 2017)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Joseph Mwaura Muthoni, was charged on two (2) Counts of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code Cap 63 (Laws of Kenya). The particulars of Count 1 were that on the 30th day of December 2012 at Chania River Bank, Delmonte in Thika within Kiambu County, jointly with another not before court, while armed with a panga, they robbed Haron Racho Mwangi (hereinafter referred to “PW 1”), of two mobile phones make Samsung E250, both valued at Kshs 4,200/= and immediately before such robbery, threatened to use actual violence to the said PW 1.

2. The particulars of Count II were that on the aforesaid date and place, jointly with another not before court, while armed with a panga, they robbed Catherine Wangui Wanjiru (hereinafter referred to “PW 3”), of a mobile phone make Itel 2020 valued at Kshs 1,800/= and immediately before such robbery, threatened to use actual violence to the said PW 3.

3. The Learned Trial Magistrate, Hon C.A Otieno-Omondi, Principal Magistrate, convicted him of Count 1 and imposed on him the death sentence as was prescribed under the law. He was, however, acquitted on Count II on the ground that the Prosecution did not prove its case against him beyond reasonable doubt.

4. Being dissatisfied with the said judgment, on 30th June 2017, the Appellant filed a Chamber Summons seeking leave to file his Appeal out of time, which application was allowed and the Petition deemed to have been duly filed. He relied on four (4) Grounds of Appeal. On 21st March 2018, he filed Amended Grounds of Appeal and Written Submissions. This time he relied on six (6) Amended Grounds of Appeal.

5. When the matter came up for hearing on 21st March 2018, the State submitted orally in court.

LEGAL ANALYSIS

6. As this is a first appeal, this court analysed and re-evaluated the evidence afresh in line with the holding in the case of ­Odhiambo vs Republic Cr App No 280 of 2004 (2005) 1 KLRwhere the Court of Appeal held that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanor”.

7. Having looked at the Appellant’s and State’s Written Submissions, this court found that the only issue that had been placed before it for determination were:-

1. Whether or not the Appellant’s right to fair trial were infringed upon;

2. Whether or not the Prosecution proved its case beyond reasonable doubt.

8. The court therefore dealt with the said issues under the distinct and separate heads shown herein below.

I. RIGHT TO FAIR TRIAL

9. Amended Ground of Appeal No (1) was dealt with under this head.

10. The Appellant submitted that the entire trial process was invalid, bad in law, null and void and an exercise in futility. He argued that when he made an application to recall PW 1, he had not been furnished with Witness Statements. He pointed out that when the trial commenced afresh and PW 1 was recalled, he ought to have taken plea afresh in accordance with Section 207 of the Criminal Procedure Code Cap 75 (Laws of Kenya).

11. The State contended that the requirement of taking of plea afresh was not correct and that the provisions of Section 200 of the Criminal Procedure Code had been complied with.

12. Section 207 of the Criminal Procedure Code provides as follows:-

(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.

(2) If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:

Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.

(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.

(4) If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him.

(5) If the accused pleads—

(a) that he has been previously convicted or acquitted on the same facts of the same offence; or

(b) that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.

13. The procedure of the plea taking was as was submitted by the Appellant and buttressed in the case of Republic vs Yonasani Egalu & Others [1965] 9 EACA 65 amongst other cases where the common thread was that every element of the charge is read to an accused person in a language that he understands and that the trial court should record whether he admits or denies the offence.

14. A perusal of the proceedings showed that the substance and every element of the two (2) Counts were read to the Appellant and he pleaded not guilty whereupon the Learned Trial Magistrate recorded that he had pleaded not guilty. He did not seem to have a problem with this plea. His concern was that he did not take plea when the trial started de novo after Honourable A. Lorot (SPM) took over conduct of the matter from Honourable M.W. Mutuku.

15. Section 200 (3) of the Criminal Procedure Code which was applicable when Honourable A. Lorot (SPM) took over the matter as aforesaid stipulates as follows:-

“Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

16. It is very clear from the aforesaid provision of the law that there is no requirement for an accused person to take plea afresh when a succeeding magistrate or judge takes over a matter that has been partly heard by another judge or magistrate. The only right that an accused has under Section 200 (3) of the Criminal Procedure Code is to have the witnesses who have been heard by a previous magistrate or judge resummoned and reheard by the succeeding magistrate or judge. Notably, the resummoning and rehearing of witnesses is discretionary and not mandatory.

17. In the premises foregoing, Amended Ground of Appeal No(1) was not merited and the same is hereby dismissed.

II.PROOF OF THE PROSECUTION’S CASE

18. Amended Ground of Appeal Nos (2), (3), (4), (5) and (6) were dealt with under this head.

19. The Appellant submitted that the Learned Trial Magistrate erred when she convicted him on the sole identification of PW 1 and PW 3 without ruling out the possibility of a mistaken identity in view of the prevailing circumstances at the scene of the attack. He pointed out that PW 1 and PW 3 met a sudden and unexpected attack. As PW 1 was strangled and he fell down, he was in a state of shock and general mode of confusion and could not have identified his attacker. He said that this was the same case for PW 3 as she was also scared. He referred this court to the case of Republic vs Turnbull [1976]wherein it was held that mistakes in identification can occur even in a case of recognition.

20. He added that three (3) months had elapsed by the time he was arrested which he argued created doubt as to the basis of his attack. He further added that Occurrence Book (OB) No 47 was not produced in court as evidence to prove the specific offence of which he was arrested. He relied on the case of Shaban Bin Donald vs Republic [1940] Vol 7 EA 60 in this regard.

21. He further argued that Inspector Kasee, who Corporal Lydia Rutere (hereinafter referred to as “PW 4), said conducted the Investigation Parade, was not called to testify in this case. He contended that he was denied a vital chance to cross-examine him.

22. It was therefore his submission that because PW 1 and PW 3 were not there when he was arrested, it was unsafe for the Learned Trial Magistrate to have relied on their evidence to prove that they identified him. He thus urged this court to allow his appeal.

23. On its part, the State submitted that an Identification Parade was conducted and PW 1 and PW 3 identified the Appellant as their attacker. It added that PW 1’s injuries were corroborated by the Chairman of Majengo Community Policing, Daniel Ndungu Mwaura (hereinafter referred to as “PW 2”) and PW 3. He said that PW 1 testified that the Appellant stole his phone, which evidence was also corroborated by PW 3. It was its submission that because the Appellant was armed with a panga at the material time of the attack, the Prosecution had proved its case against him, beyond reasonable doubt. It therefore urged this court to dismiss his Appeal.

24. A perusal of the proceedings shows that on the material date and time, PW 1 and PW 3 were walking when the Appellant and another person approached them from behind and held PW 1’s neck. PW 1 fell down and the Appellant slashed him with a panga on the face and shoulder. The Appellant started ransacking his pockets and robbed him of three (3) phones. At the time, the Appellant’s accomplice was hitting him with his fists. They did not hit PW 3.

25. PW 1 recognised the Appellant as a person who used to collect firewood in the Delmonte area. He did not know his name. They reported the matter to PW 2 and the police and gave an identification of their attacker. When the Appellant was arrested three (3) months later, none of the phones were recovered. PW 1 and PW 3 identified the Appellant as their attacker when an Identification Parade was conducted. PW 1’s evidence was corroborated by PW 2, PW 3 and PW 4.

26. Section 296 (2) of the Penal Code provides as follows:

a. the offender must be armed with any dangerous or offensive weapon or instrument; or

b. the offender must be in the company of one or more other person or persons or;

c. at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

27. The Charge against the Appellant could be sustained if one any of the aforesaid ingredients were present. However, in this instant case, all the ingredients constituting the offence of robbery with violence were present showing the aggravated circumstances that obtained herein.

28. PW 1 recognised the Appellant as he knew him physically. It was not necessary for the Prosecution to have called Inspector Kasee who conducted the Identification Parade because the Appellant was properly identified the Appellant as their attacker. Indeed, the attack took place at 3. 00 pm when the lighting conditions were favourable for a positive identification. In any event, under Section 143 of the Evidence Act Cap 80 (Laws of Kenya), the prosecution has the discretion to decide the number of witnesses to prove a particular fact. PW 1’s identification of the Appellant by recognition was sufficient. Failure to call the said Inspector Kasee was therefore not fatal to the Prosecution’s case. This court was thus not persuaded by the Appellant’s submissions that there was a case of mistaken identity as he had argued.

29. Going further, PW 1 and PW 3 ably demonstrated that the Appellant and his accomplice stole their phones. The Learned Trial Magistrate arrived at a correct conclusion that the Prosecution had proved Count I and not Count II, as it was the Appellant who was robbed of the three (3) phones from his pockets.

30. The Appellant and his accomplice were armed with a panga. They hit PW 1 with their fists. Beating, hitting and striking also constituted the offence of robbery with violence. His unsworn evidence which had little or probative value appeared to this court, as it did appear to the Learned Trial Magistrate, not to have dislodged the Prosecution’s case.

31. In the premises foregoing, this court found Amended Ground of Appeal Nos (2), (3), (4), (5) and (6) not to have been merited and the same is hereby dismissed.

DISPOSITION

32. For the foregoing reasons, the upshot of this court decision was that the Appellants Appeal that was lodged on 30th June 2017 was not merited and the same is hereby dismissed. Instead, this court hereby affirms the conviction and the sentence that was meted upon the Appellant herein as they were both lawful and fitting.

33. However, in view of the holding in the recent case of Francis Muruatetu & Another vs Republicwhere the Supreme Court found that the mandatory sentence was unconstitutional, this court hereby directs that this matter be referred back to the Chief Magistrate’s Court at Thika Law Courts for re-sentencing, if need be. This matter shall be placed before the Chief Magistrate of Thika Law Courts on 20th August for his or her further orders and/or directions.

34. It is so ordered.

DATEDand DELIVEREDat KIAMBU this 14thday of August2018

J. KAMAU

JUDGE