[1998] KEHC 63 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Appeal 57 of 1996

(From Original Conviction and Sentence in Criminal Case No. 1566 of1995 of thePrincipal

Magistrate's Court at Malindi - J.R. KaranjaEsq., - Principal Magistrate)

KAHINDI LUGO KONDE ................................................................... APPELLANT Versus REPUBLIC........................................................................................ RESPONDENT

JUDGMENT

The Appellant was the Second Accused person before the MalindiPrincipal Magistrate where three of them were charged with theoffence of robbery with violence contrary to Section 296(2) of thePenal Code. There was an Alternative Charge of Handling Stolengoods contrary to Section 322(2) of the Penal Code.

On 17th October 1995 at about 8 p.m., a gang of about sixpeople armed with pangas and rungus, burst into the residentialpremises of one FRANCO TONDIN (Franco) situated at Bofa Village inKilifi. Franco is an Italian and was at the time away in Italy.But he had left a shamba-boy David Mwangale (Mwangale) (P.W.I) andHARRISON MWANONGO (Harrison) (P.W.2) a Cook-cum-caretaker, to be incharge of the property.

As the gang approached the compound Harrison who was outsidehis quarters saw them and immediately took off fleeing for his life. Not so Mwangale who was inside his house. The gang attackedhim and tied him up with ropes. They then entered the house ofFranco and stole various household items listed in the charge sheetincluding a Nissan Sunny motor vehicle Registration No. KAB 411S.They disappeared. Mwangale never saw or identified any of them.When he succeeded in untying himself he raised alarm and neighbourscame. They escorted him to report the matter at Kilifi PoliceStation. Harrison also returned soon after the robbery but it wasall over. He was unable to identify anyone of the robbers either.When the robbery report and the Registration number of themotor vehicle was made at 11 p.m. the details were circulated toother Police Stations and investigations were launched. Thefollowing day information was received by IP MARY KALAMBA ofCentral Police Station Mombasa through 999 Control room telephoneto the effect that some three robbery suspects had been arrested bymembers of the public at Ganjoni area, Mombasa. She and hercolleagues proceeded to the scene and. found three people beaten upby members of the public who were preparing to lynch them. Thethree had been found with a motor vehicle Registration No. KAB 411SNissan Sunny with some pangas in it. IP Kalama took the car, thepangas and the three persons into her custody. It was laterconfirmed that the car was stolen and so the three persons, the carand the pangas were forwarded to Kilifi Police Station where thereport on the theft originated. The three persons were theaccused in the lower court. It turned out that one of the accused person was well known in the neighbourhood of the scene of therobbery as testified by Mwangale and Harrison while the Appellantwas also normally seen in the neighbourhood by Mwangale,

In their defenses, one of the accused said he had been awayfrom Mombasa on the day of the robbery. He had returned to hishouse the following day and while he was in his house he heardshouts of thief. He went out and found a mob which was about tolynch two people. When he tried to rescue them he was also brandeda thief and was beaten up. All were rescued by police. The otheraccused in the lower court said he was selling groundnuts as usualwhen a group of people confronted him and said he was a thief. Hewas beaten up and was rescued by police when he was about to belynched.

As for the Appellant he said he was heading to work when hesaw three people running away near a garage. One of them came andhit him. A group said he was a thief. They beat him up and whenhe was about to be lynched the police came to his rescue.

All that evidence was considered by the learned PrincipalMagistrate who came to the conclusion that the act of robbery wascommitted at the home of Franco and that the circumstantialevidence adduced pointed to the three accused persons as part ofthe gang of robbers. Nevertheless he found no support for a chargeof robbery with violence under Section 296(2) and he convicted themon the lesser charge of simple robbery. Probation reports werecalled for in respect of the three convicts before sentencing but it was unfavorable for the Appellant. While one of the other twopersons was placed on probation for 2 years and the other committedto a Borstal institution owing to his tender age, the Appellant wassent to prison for four and a half years with 8 strokes of the caneand was placed under police supervision for 5 years aftercompletion of the sentence.

It is not clear whether any appeals were filed by the other two accused. But the Appellant now challenges both his convictionand sentence on 4 grounds in his Amended Petition of Appeal dated9th October 1997. He drew them up in person - or moreappropriately had them drawn for him as he professed illiteracy.

In summary he states:-

(1) The lower court erred in believing the evidence of IP Kalama (P.W.4) which was shallow.

(2) The learned trial Magistrate ,erred in accepting the evidence of P.W.2 that the, appellant was a neighbour.

(3) The learned Magistrate erred in finding thatthe appellant was part of the gang thatwounded the complainant.

(4) The learned trial Magistrate erred in failingto consider the appellant's un sworn statement.

The appellant made no elaboration of those grounds at the hearing of his appeal choosing to leave them as drawn for consideration by the court.

The first complaint is the treatment given to the evidence of IP Kalamba by the trial Magistrate. There is merit in the criticism that it was shallow in content and left out some detailsfor example as to her source of information, the time of arrival atthe scene, where exactly the Appellant and the other accused were,where the motor vehicle was, and the state of it or the members ormember of public found at the scene. But I am of the view thatsuch omissions did not occasion a miscarriage of justice. Whateverher source of information IP Kalamba found herself at Ganjoni atthe scene where admittedly and on the evidence on record the threepersons were being beaten up by members of the public and were onthe verge of being lynched. She and the other police officersarrived in time to save them from summary execution. That therewas no member of the public called to testify on this isunderstandable. For mob injustice is a criminal offence and suchwitnesses may incriminate themselves. It is clear from herevidence however which was accepted by the trial Magistrate, thatthe three persons, including the Appellant were found with themotor vehicle which was identified later to have been stolen fromthe complainant. I find no merit in the criticism levelled againstthe trial Magistrate on this ground.

Ground 2 & 3 may be considered together. The straight answerto Ground 2 is that there is nowhere in the record that P.W.2stated' that the Appellant was his neighbour. It was P.W.I,Mwangale who said he normally saw the appellant in theneighbourhood. There is no serious challenge to that assertion.Mwangale did not say that he recognised or identified the Appellant on the night of the robbery. It is clear from his evidence that henever saw any of the attackers and the trial Magistrate did notpurport to hold that the Appellant was so identified. In hisjudgment, the trial Magistrate clearly surmised, and rightly so,that the case rested on circumstantial evidence. He went furtherto find that the strongest circumstantial evidence was the findingof the motor vehicle only hours (or one day) after the robbery,which motor vehicle, on the evidence he also accepted, was inpossession of the Appellant and two others. This the trialMagistrate concluded was more consistent with the guilt rather thanthe innocence of the Appellant and his co-accused. In hissubmissions on Appeal, State Counsel Mr. Nge'no stated that thedoctrine of recent possession applies to import the fact that theAppellant was a principal offender in this crime. He alsosubmitted, without making the suggestion for enhancement of thesentence, that the Appellant was lucky to have the charge reducedto the lesser offence under. Section 296(1) Penal Code. In hisview, the offence as charged under Section 296(2) had been provedsince P.W.I was wounded before the items listed in the charge sheetwere stolen. The view of the trial Magistrate was that the moreserious offence was not proved to have been committed because theaccused persons were not shown to have done the actual wounding.But this is a narrow view to take of the offence. The offence iscommitted as defined in the Section and as elaborated in NDUNGU VsRepublic CA 116/95 (UR) when either

(1) the offender is armed with any dangerous oroffensive weapon or instrument or

(2) he is in company with one or more other personor persons or

(3) at or immediately before or immediately afterthe time of robbery, he wounds, beats, strikesor uses any other violence to any person.

Those three need not exist at the same time. Proof of one without the others is sufficient to sustain a conviction. The trial Magistrate appears to have considered only the third and decided that the offence was not committed as allowed. In doing so he appears to have accepted the P3 report produced by a police officer without calling the maker. Again this was erroneous as has severally been held by the court of Appeal on the application of Section 77 of the Evidence Act. As recently as January 1998, the Court of Appeal stated:

"It was indeed wrong for Sgt. Mwangangi toproduce the P3 form which he did not makeunless the Doctor who authorised it had becomeincapable of giving evidence. It followstherefore that the P3 form produced by Sgt.Mwangangi was inadmissible in evidence. Thatbeing so opinion evidence contained in thesaid form was hearsay and was inadmissible inevidence on that ground".

- CA 86/97 RAJAB ABDALLA -Vs- REPUBLIC (UR)

It would follow therefore that there was no admissible evidence in this case that there was the wounding of Mwangale P.W.I. There was evidence nevertheless that the robbers were more than one and were armed with rungus and pangas. These are matters that the trial Magistrate did not consider but he did, at all events, reduce the charge to a lesser offence and convicted therefor. As a first Appellate court I am not at liberty to enhance the charge or sentence on the Authority of CA 34/97 Amos Oraro & 3 others -Ws-Republic (UR) because

" . . . , in altering the finding in an appealagainst conviction and substituting therefore aconviction for an offence other than thatcharged the High Court in its appellatejurisdiction can only act within theprovisions of Sections 179 - 191 of theCriminal Procedure Code and .... suchalteration and substitution (are) onlypossible under Section 179 Criminal ProcedureCode which does not permit a substitutedconviction of a major offence from a minoroffence.

The first appellate court in the appealhad no jurisdiction to substitute theappellant's conviction in the first and secondcounts referred to earlier in this judgmentfrom that of simple robbery to that of capitl robbery."

While I do not agree with the trial Magistrate therefore that the more serious offence was not proved, I am unable to convict for that offence or to enhance the sentence.

All in all I find no merits in the second and 3rd grounds of Appeal.

As for the fourth ground I am of the view that the trialmagistrate did not ignore the evidence of the Appellant, It was inany event a brief general denial that the Appellant committed theoffence as charged. This was not believed by the trial Magistrateand he was entitled to make such assessment as he saw and heard theAppellant in the witness box. He was better placed to assess hiscredibility than I am on appeal.

The appeal on conviction is dismissed.

As for sentence the maximum provided for under the law is 14years together with corporal punishment not exceeding 28 strokes.The trial Magistrate was not hasty in considering the sentence butcalled for a Probation Officer's report before doing so. He had adiscretion to exercise and I do not find that it was exercised ina capricious manner. The Appeal on sentence is also dismissed.

Dated at mombasa this ..6th day of March 1998.

P.N. Waki

JUDGE