[2017] KEHC 4280 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL NO. 80 OF 2012

(An appeal from the conviction and sentence by R.O. Oigara (SRM) in Kimilili CrC No. 284 of 2011)

JOSEPH WEKESA WENANI…………APPELLANT

VERSUS.

REPUBLIC………………………….RESPONDENT

JUDGMENT.

[1] The appellant (JOSEPH WEKESA WENANI) was convicted on two counts of robbery with violence C/Sec. 295 as read with section 296 (2) P.C., the particulars being that on 16th March 2011 at 12. 30 a.m. atKIMILILItownship in Kimilili Bungoma County jointly with others not before court, while armed with dangerous weapon, namely a panga, robbed MARGARET NAMALWA WANYAMA of her mobile phone make Nokia 1200 valued at Kshs.15,000/= and cash Kshs.3,000/= all to the total value of Kshs.4,500/= and at or immediately before or immediately after the time of such robbery used actual violence on her.

On the same date and place, and the, he violently robbed TOBIAS ATEKO off his cash Kshs.1,000/= and a mobile. The appellant denied the charges. MARGARET NAMALWA (Pw2) was awoken from her sleep by noise at the door of her house within KITALE SINDANI area. The people at the door introduced themselves as Police officers and ordered her to open the door. There were two people, and it was dark – they ordered her to give them money and her mobile phone. They cut her on the head then took away Kshs.3,000/= plus her phone, leaving her bleeding. They then proceeded to he house of her neighbor TOBIAS ATEKO (PW3) and met him as he was getting to his home from a football match at Mango Inn. He was ordered to stop and sit down and give them money. They took his money Kshs.1,000/= which was inside his wallet and hit him on the head using a club. He raised an alarm while running away. It was his evidence that he did not recognize the people who robbed him, saying

“The people who robbed me, I did not recognize any. I do not know the suspect or their voice, I saw him for the 1st time in court. I didn’t recognize anybody. I did not see anybody. They had sport (sic) light. The Kshs.1,000/= was never recovered”.

[2] Both victims were rushed to hospital by a good Samaritan. PC. KIZITO(PW4) informed the trial court that while on night patrol in the company of PC. MOHAMMED, he heard screams from SINDANIarea where there were rental houses. On arriving at the scene they found a crowd of people who informed them that thugs had attacked the houses and stolen there from them fled towards MODERN SCHOOL. The police officers went towards Modern School area and found the appellant who was armed with a panga, rungu, plies, and spot light and a bunch of keys.

Nothing which was robbed off the victims was recovered from the appellant. But nonetheless, he was taken to the police station and charged.

PW1’s injuries were treated by OSCAR OKATE (PW5) at KIMILILIDistrict HOSPITALwho confirmed that she has a cut wound on the left side of the head and the hand, and he opined that the injury was inflicted using a sharp object.

CPL JOB NDABU (PW6) ofKIMILILI confirmed that both victims did not identify the attackers but there had been tension inSINDANI area where residents were complaining of being beaten by robbers.

He stated

“It was clear that the gang stormed SINDANI village purporting to be police officers hence entering their houses”.

None of the stolen items were recovered, nor was an identification parade conducted, but the accused was arrested 10 -15 metres from the scene having in his possession keys, a pair of pliers, a torch and a panga, so he was believed to have been one of the culprits.

In his unsworn defence the appellant explained that he closed his business in Kimilili at 6. 00p.m. on 09/03/2011, and proceeded to a club to watch soccer. He left the club at 9. 00p.m. for his house and shortly thereafter met 3 police officers who arrested him and advised him to pay Kshs.5,000/= to secure his release. He was then charged in court.

[3] In his Judgment, the trial magistrate was convinced that although the victim did not identify the attackers, the appellant was among those who attacked them saying:-

“…….the accused was arrested immediately after the robbery and weapons including a spotlight that complainant confirmed they had, I have no doubt that the prosecution case on this matter has been proved to the required standard….. The circumstantial evidence surrounding this case was corroborated, the complainant’s case, the weapons that were used were recovered.

The defence tendered by the appellant was rejected as a tale manufactured by himself to save his skin. The appellant challenged these findings on grounds that the trial magistrate failed to appreciate the facts which were inadequate to sustain a conviction. He also lamented that evidence on the identification was wanting.

The appellant’s written submissions were that there was no opportunity to identify anything or anyone as the two witnesses confirmed that the attack took place under cover of darkness and both victims were categorical that they did not identify anyone and the opportunity for identification was not favourable. It also pointed out that whereas Pw4 claimed that the appellant was found with a panga, Pw6 said he had a rungu this putting there credibility at stake.

In opposing the appeal, MR. AKELLO on behalf of the State submitted that although no one directly identified the appellant as the perpetrator of the offence, he was arrested shortly in the general direction where the culprits had fled to, while armed with a rungu. He urged the court to dismiss the appeal.

It is significant that none of the items robbed off the victims was recovered from the appellant. The opportunity for identification whether of the attackers or the weapons they had was nil – both victims confirmed that the attack took place under the cover of darkness and they did not see the person. The trial magistrate seemed to invoke the principles of circumstantial evidence to convict the appellant. However for a court to rely exclusively on circumstantial evidence alone then the evidence must be such that it points inculpably points to the guilt of the accused and to the exclusion of any other reasonable hypothesis. The fact (if at all) that the appellant was found with a bunch of keys, a pair of pliers and a torch, did not prove that he had just attacked the two victims. Indeed Pw1 stated

“when I was attacked, I did not see the object but it was a sharp object”.

[4] PW4 who arrested the appellant claimed he was found in possession of inter alia a rungu – which would negate the position taken by the trial court that the appellant was found with a weapon used in the attack. Apart from this, Pw4’s evidence creates doubt in the prosecution case as Pw6, another police officer who was at the scene where the appellant was arrested claimed that he had a rungu.

As to the findings that the torch recovered from the appellant was the same one the attackers used, with the greatest of respect to the trial magistrate, this findings was totally unsupported by any evidence. None of the witnesses claimed to have seen and identified the torch, nor was that torch shown to them in court to confirm it was the same one the attackers had and findings was based on pure speculations.

The appellant may have been within SINDANI area at 9. 00p.m. or thereabouts – but SINDANI village was not a security operation area which prohibited peopled from walking after certain hours. If indeed he had a torch, keys, a pair of pliers and a rungu or a panga, then the prosecution failed to demonstrate that these were the very items used in the attack. I think at best police ought to have preferred a charge of preparing to commit a felony. It is my finding that the conviction was unsafe and it is quashed. The sentence is set aside and the appellant shall be set at liberty forthwith unless otherwise lawfully held.

Delivered and dated this 12thday of July, 2017 at Bungoma.

H. A. OMONDI

JUDGE.