[2023] KEHC 25231 (KLR)

Karisa v Republic (Criminal Appeal E057 of 2022) [2023] KEHC 25231 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25231 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E057 of 2022

AK Ndung'u, J

November 9, 2023

Between

Juma Mwaipha Karisa

Appellant

and

Republic

Respondent

(Appeal from Original Conviction and Sentence dated 18/10/2022 in Mariakani PM Criminal Case No 365 of 2019– S.K Ngii, PM)

Judgment

1. The Appellant in this appeal, JUMA MWAIPHA KARISA was charged with two counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (count I and II) and alternative charge of consorting with a person in possession of a firearm contrary to section 89(2) of the Penal Code. He was however convicted after trial of robbery with violence in count II only. He was acquitted in count I for lack of evidence. On 18/10/2022, he was sentenced to twenty (20) years imprisonment.

2. The particulars of the charge were that on 21/04/2019 at about 11:30am at Mazeras shopping centre within Rabai Sub-County of Kilifi County, within Coast Region jointly with others not before court while armed with a dangerous or offensive weapon namely two AK47 rifles and a dagger robbed Mohamed Isack of Kshs.600,000/-.

3. The Appellant was dissatisfied with the conviction and the sentence hence his appeal to this court against both. The Appellant filed a petition of appeal through an advocate challenging the conviction and the sentence on the following grounds;i.The learned magistrate erred by failing to find that the charge was defective and proceeded to base a decision in such a defective charge.ii.The learned magistrate erred in finding that the prosecution had proved its case beyond reasonable doubt.iii.The learned magistrate erred in finding the Appellant guilty based on circumstantial evidence when it was not safe to convict on the same.iv.Having found the guilt of the Appellant was founded on circumstantial evidence, the learned magistrate failed to consider the possibilities available.v.The sentence was harsh and was arrived at without regard to mitigating factors.

4. The appeal was canvassed by way of written submissions. The Appellant submitted that the charge sheet was defective since there was no specification of the recovered items in the evidence of the prosecution witnesses. That the complainant told the court that his money, phone and sim cards were stolen but the phone and the sim cards were not mentioned in the particulars of the charge sheet. PW2, the complainant testified that he did not see the face of the assailants but stated that he mastered the body size and physique of the rider which matched that of the accused which was a general description to enable the court to determine it was the Appellant in exclusion of the others. That the identification by the complainant was dock identification since he did not participate in an ID Parade. That the complainant testified that he was informed by the police that the Appellant was the person who stole from him. That it is strange how the police could confirm that he was the robber yet he was not identified by the complainant.

5. He further submitted that PW4 testified that the Appellant was arrested by the members of the public but none was called to testify as to where they arrested him and how far it was from the scene. Furthermore, none of the items stolen were recovered from him. That the learned magistrate finding on identification was not sound on account that the fact that there could have been several eye witnesses did not negate the need for an identification parade to be conducted. The trial magistrate failed to consider that there was no identification of the Appellant at the scene of crime.

6. On production of the CCTV footage, he submitted that the CD that was made by Inspector Wanjohi who did not testify before court was not admissible without hearing his evidence and him producing the original CCTV footage. That the certificate authenticating the footage ought to have been signed by the complainant since he was the owner of the devise in accordance with section 106B(4)(d) of the Evidence Act as he was the one who was in management of the devise. Thereby, the CCTV footage was inadmissible since PW2 the complainant did not sign to certify the validity of the footage. Reliance was placed on the case of R vs Barisa Wayu Mataguda (2011) eKLR.

7. He submitted that PW3 testified that they recovered money from the Appellant suspected to have been stolen from the complainant whereas the complainant did not identify the alleged money in court thus there was nothing to link the alleged money to the Appellant or the complainant. The trial magistrate erred by calling the Appellant an accomplice since he had no obligation to inquire from the customers if they were robbers and their intentions. That the trial magistrate failed to properly consider his defence especially the fact that his passengers were gunned down by the police as they tried to escape whereas the Appellant was spared. The court failed to appreciate the reason why the Appellant was not gunned down if at all he was a robber. On the sentence, he submitted that the same was harsh and excessive and urged this court to reduce it to a lesser sentence.

8. The learned counsel for the Respondent supported the conviction and the sentence. Counsel submitted that the charge sheet as drafted was not defective and was in tandem with the evidence of the prosecution witnesses. Further, that the offence of robbery was sufficiently established since the Appellant was in company of three others, the Appellants accomplices were armed and they stole money from the complainant. On involvement of the Appellant to the robbery, counsel submitted that the Appellant was convicted on circumstantial evidence in that he was the rider of the motor cycle that ferried the three armed robbers. Two armed robbers entered the shop and one was left outside manning the entrance. Counsel stated that if at all the Appellant was an innocent rider, nothing prevented him to flee from the scene upon seeing that the robbers were armed or calling for help. He however waited for them and they fled from the scene together.

9. It is urged that PW3 and PW4 tried to stop the robbers but they opened fire. The Appellant was arrested by PW3 and PW4 as he tried to flee the scene hence his conduct was not compatible to someone who was innocent and therefore the trial court rightly invoked section 20 of the Penal Code. Counsel submitted that the Respondent therefore proved their case beyond reasonable doubt.

10. This being the first appellate court, my duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

11. I have considered and re-evaluated the evidence tendered before the trial court. I take cognizance that I neither saw nor heard the witnesses testify and have given due allowance for that. I have considered the grounds of appeal and the learned submission by counsel and case law cited.

12. The Appellant took a preliminary point of law that the charge sheet was defective in that there was no specification of the recovered items in the evidence of the prosecution witnesses. That the complainant told the court that his money, phone and sim cards were stolen but the phone and the sim cards were not mentioned in the particulars of the charge sheet.

13. What the Appellant was implying is that the prosecution evidence was in variance with the charge sheet in that the sim cards and phone alleged to have been stolen from PW2’s shop were not mentioned in the charge sheet.

14. Section 134 of the Criminal Procedure Code provides for what the components/ingredients of the charge sheet constitute as follows;“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”.

15. In the case of Isaac Omambia v Republic, [1995] eKLR, the Court of Appeal considered the ingredients necessary in a charge sheet and stated as follows:“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

16. The charge sheet clearly disclosed the offence and its particulars. It was in the particulars that Kshs.600,000/- was stolen from PW2. Failing to state that the phone and sim cards were stolen in my view does not vitiate a charge since the defect did not occasion any miscarriage of justice or a violation of the Appellant’s fundamental right to a fair trial. This defect is curable under Section 382 of the Criminal Procedure Code which states that:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

17. The only defect noted in the charge sheet is the fact that the Appellant was charged under section 295 as read with section 296(2) of the Penal Code. Our superior courts have on several occasions stated that drafting the robbery with violence count under the two sections amounts to duplicity. See Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR. The courts have also held that where the charge is deemed to be duplex, the test will be whether the defects occasioned any prejudice to the Appellant. The Court of Appeal in Paul Katana Njuguna v Republic [2016] eKLR while faced with a similar issue held thus;“…In the matter before us, we are unable to detect any prejudice which the appellant suffered. The record shows that the appellant suffered no confusion when the charge, as framed, was read to him and when the witnesses testified, he fully cross-examined them. He raised no complaint before both the trial court and before the High Court. So, while it would be undesirable to charge an accused person under both sections in the alternative, it would not be prejudicial to that accused person if the offences are not framed in the alternative. As we have already noted the rule against duplicity is to enable an accused know the case has to meet. We accept as the correct position in law that uncertainty in the mind of the accused is the vice at which the rule against duplicity is aimed. If there is no risk of confusion in the mind of the accused as to the charge framed and evidence presented, a charge which may be duplex will not be found to be fatally defective.”

18. In this case, the Appellant understood the charges against him, he participated in the hearing by cross examining the witnesses and mounted a defence at the close of the prosecution case. He raised no complaint before the trial court and in the circumstances, I find that there was no miscarriage or failure of justice on the ground that the charge was duplex.

19. Moving on, having considered the grounds of appeal, submissions thereon and evidence adduced before the trial court, the issue for determination is whether the prosecution proved the offence of robbery with violence against the Appellant beyond any reasonable doubt. The case before the trial court was as follows.

20. PW1 was the complainant in count I which was dismissed for lack of evidence. He testified that his shop was robbed by armed men but he did not see the robbers since he locked himself in another room. He however lost Kshs.80,000/-, phone and sim cards.

21. PW2 was the complainant in count II. He testified that he was at his place of work on the material day. He was seated outside his employer’s shop at 3:00pm when a motorcycle came carrying four people. One person had a basket and from it he drew a gun. They were wearing mask and the rider was wearing a helmet so he did not see their faces. The motor cycle was yellow in colour and was Haojin make. Two people removed guns from the basket on alighting and they led him to the shop. Two robbers entered the shop while one was left at the door manning the entrance and the rider was left with the motorcycle outside.

22. They removed the money from the cash box and fled. He called his boss who called the police who visited the scene. He stated that they stole money, sim cards and phone and that he lost about Kshs.600,000/-. He was directed by the police to go to the station to record a statement. He went to the station after two hours where he found three bodies of people who had been killed. He also found the motor cycle which the robbers were using, the basket that was carrying the guns and the guns which he identified in court. He was informed a fourth suspect was arrested but he did not see him. The CCTV footage from the shop was played in court which he identified. He stated that the Appellant did not alight from the motorbike.

23. PW3, PC Lang’at testified that they were on patrol at Mariakani-Mombasa Road. While at Danka, a group of motor cyclist from Mazeras informed them that there were robbers who had robbed shopkeepers at Mazeras and Rabai area. They were using a yellow motor cycle and they were four in number. They boarded their vehicle and they spotted a yellow motorbike off the main road and when they got near, IP Kazungu ordered them to stop. The robbers dropped the motor cycle and armed themselves with guns which they were carrying in a basket. There were two AK47 riffles. They fired at them injuring three and the fourth suspect who was the rider hid himself amongst the members of the public who arrested him. They also recovered a knife and a jacket inside the basket.

24. He stated that one gun was loaded with 30 bullets and the other with 29 bullets. He testified that they recovered money totalling to Kshs.368,000/- in various denominations. He identified the Appellant as the person who was riding the motor cycle. He identified all the items he mentioned in his testimony. On cross examination by the Appellant, he testified that they did not recover those items from the Appellant.

25. PW4 and PW5 corroborated PW3’s evidence. They testified that they were informed of the robberies and that the suspects were four in number riding a yellow motor bike. They followed the suspects and when they spotted the police, they stopped, armed themselves with AK47 and pointed at them. They had a basket where they had hidden the guns. They responded and killed three suspects at the scene. The rider tried to escape but he was arrested by the members of the public. They recovered two guns, Kshs.368,000/-, jacket, a knife and the basket and the motor cycle which they identified in court. They identified the Appellant as the rider of the motor cycle.

26. PW6 was the ballistic examiner. He testified that he received two Ak47 riffles exhibit A1 and B1 and 59 rounds of ammunition exhibit A3,-A32, B3-B31. Upon examination, he stated that his findings were that Exhibits A1 and B1 were firearms. Exhibits A3, B3 were also ammunitions. He also stated that they established that the two firearms were used in other shooting incidents, a murder, robbery with violence and attempted robbery with violence at Likoni on different occasions. He produced the ballistic report as Pexhibit 13, the riffles as Pexhibit 2(a) and (b), the bullets as Pexhibit 7, 8, and 9.

27. PW7 testified on behalf of the investigating officer who was on transfer. He confirmed what was reported of the two robberies and the arrest of the Appellant. He testified that the Appellant had claimed that he was kidnapped by the robbers which could not be true because he was left outside the shop alone, waited for the robbers and drove off after they were done. He produced the exhibit memo as Pexhibit 14, the basket as Pexhibit 1, Knife Pexhibit3, motor cycle Pexhibit4, CCTV footage Pexhibit5, jacket Pexhibit6, kshs.368,900/- in different denominations as Pexhibit 1 (a-e), watch as Pexhibit 11. He produced the exhibit memo in respect to electronic evidence by PC Ziro as Pexhibit 15. He also produced the certificate authenticating the CCTV footage prepared by PC Wanjohi as Pexhibit 16. He testified on cross examination that the Appellant was riding the motor cycle used in the robbery and there were two suspects that were killed and not three.

28. The Appellant in his unsworn testimony testified that he was at Mazeras petrol station when he carried three passengers whose intentions he did not establish. He charged them Kshs.200/-. On his way, he met a crowd of people and behind them there was a police vehicle. They were ordered to stop and his passenger alighted and tried to escape but they were killed by the police. He testified that he was spared as a rider.

29. That was the totality of the evidence before the trial court.

30. To succeed in a charge of robbery with violence under section 296(2) of the Penal Code, the prosecution must prove the following ingredients as were clearly set out by the Court of Appeal in the case of OLUOCH –VS – REPUBLIC [1985] KLR where it was held:“Robbery with violence is committed in any of the following circumstances:a.The offender is armed with any dangerous and offensive weapon or instrument; orb.The offender is in company with one or more person or persons; orc.At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………”

31. The use of the word or in this definition means that prove of any one of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code. The prosecution duty was therefore to establish any of the above ingredients and to show the court that the Appellant robbed the complainant.

32. It is in evidence that the robbers were armed with two AK47 rifles and a knife that was recovered from the basket they were carrying. It is also in evidence that PW2 was robbed of Kshs.600,000/- from his boss’s shop. The robbers were four. It therefore follows that the charge of robbery with violence was established.

33. As to the Appellant’s participation in the robbery, the evidence before the trial court was that the Appellant was the rider of the motor cycle that was used by the robbers as the means of transport. The Appellant in his defence and submissions before this court maintained that he was an innocent rider and did not know the intentions of his passengers. He testified in his defence that he was hired by the three passengers and they paid him Kshs.200/- and he did not know that their intention was to rob.

34. The trial magistrate while dismissing the Appellant’s defence and while convicting the Appellant observed that the CCTV footage revealed that the Appellant stopped at the junction when the robbers alighted the motor cycle. At no time did the robber conceal the guns while entering and leaving the shop. One of the robbers was left at the entrance holding a rifle manning the shop. The Appellant could be seen looking at the direction of the 2nd complainant’s shop and the main road. Further, the Appellant was arrested ferrying the same robbers escaping using a murram road off the main road.

35. The trial court therefore held that the Appellant was aware of the robbery and indeed participated in the robbery and if at all he was not part of the gang, he would have disassociated himself with them the moment he observed that their mission was to rob the complainant. The trial magistrate was also guided by provisions of section 20 of the Penal Code by holding that it did not matter that the Appellant did not wield a gun, did not enter the shop and nothing was recovered from him since in the eyes of the law, he was as guilty as his accomplices who were gunned down.

36. The trial magistrate heavily relied on the CCTV footage in convicting the Appellant. The CCTV footage was played by the court when PW2 was testifying which corroborated what he had said in exam in chief. The Appellant in his submissions attacked the admissibility of the CCTV footage. He stated that the CD that was made by Inspector Wanjohi who did not testify before court was not admissible without hearing his evidence and him producing the original CCTV footage. That the certificate authenticating the footage ought to have been signed by the complainant since he was the owner of the devise in accordance with section 106B(4)(d) of the Evidence Act as he was the one who was in management of the devise. Thereby, the CCTV footage was inadmissible since PW2, the complainant did not sign to certify the validity of the footage.

37. Section 106B of the Evidence Act deals with admissibility of electronic records. It reads as follows:“106B(1) notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as a computer output) shall be deemed to be also a document, if the conditions mentioned in this Section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or any fact stated therein where direct evidence would be admissible.”

38. The above provision means that any information stored in a computer which is then printed on a CD or other gadget shall be treated like any other documentary evidence and will be admissible in evidence without calling the original. However, there are conditions precedent to admissibility of the said evidence. The conditions that need to be complied with in subsection (1) are set out in subsection (2) and are as follows:a.. The computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;b.During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;c.Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or accuracy of its content; andd.The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

39. Further, where one intends to give evidence under Section 106B of the Evidence Act, he has to inter alia, tender a certificate dealing with any matters to which the conditions above relate. Under subsection (4) the certificate should:“(a)Identify the electronic record containing the statement and describing the manner in which it was produced;(b.)Give such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by the computer.(c)dealing with any matters to which conditions mentioned in sub-section (2) relate; and(d)purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge of the person stating it."

40. Subsection 4(d) above provides for the making of a certificate signed by a person holding a responsible position in relation to the operation of the relevant device for the purpose of showing that the electronic record was produced by a computer.

41. What this provision therefore means is that such a certificate must in terms of section 106B(4) (d) be signed by a person holding a responsible position with respect to the management of the device (in this case the CCTV camera). In the Appellant’s view, such person would have been PW2 who was supposed to sign to certify the validity and correctness of the CCTV footage.

42. The certificate was produced as Pexhibit16 and was produced by PW7 on behalf of IP Wanjohi from the directorate of Criminal Investigations who prepared the CD by converting it from the CCTV footage. It was not stated in evidence as to who was in management and control of the CCTV camera.

43. The court in Erick Indimuli Siaya v Republic [2016] Eklr Kimaru (J) and Ngenye(J) stated thus;“It is vivid from the above provisions that electronic evidence can only be deemed as admissible if it is accompanied by a certificate under Section 106 B(4). Such certificate must be prepared. by a person who is competent in the management of the electronic devise, in this case, the CCTV cameras. He must as well outline in his statement the manner in which he extracted the information from the cameras. Unfortunately, for PW6, he did not state in court that he was a person occupying a responsible position in respect to the operation of the device (CCTV camera) or the management of the production of the information extracted there from. He also did not produce a certificate prescribed under the provision. The mere fact that he watched the photographs in the presence of PW1 and 4 did not, per se, render them admissible. We once again hold that it was an error on the part of the trial magistrate to admit both the CD and the photographs as evidence.”

44. What if the footage was inadmissible, is there any other evidence that could have led to the conviction of the Appellant? My independent re-evaluation of the evidence leads me to the conclusion that on the evidence available, Section 20 of the Penal Code comes into play. The section provides;20. Principal offenders“(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—(a)every person who actually does the act or makes the omission which constitutes the offence;(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;(c)every person who aids or abets another person in committing the offence;(d)any person who counsels or procures any other person to commit the offence, and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission………..

45. Evidence on record is that the Appellant was the one ferrying the robbers in his motorbike. He did not deny this fact. PW2 testified that a motorbike yellow in colour Haijoin Make stopped at his shop. It was carrying four people. The rider was wearing a helmet and therefore he did not identify him. He stated that the rider waited outside as his two accomplices entered the shop. One robber was left at the entrance manning the door. He further testified that immediately they alighted the motorbike, they removed two rifles from the basket which they were carrying. The removal of gun was done in the Appellant’s watch. The Appellant waited for the robbers and when they were done, they left in the Appellant’s motorbike. He further testified after two hours when he went to the police station to record a statement, he found three bodies, the basket that the robbers were carrying, the rifles and the said yellow motorbike.

46. PW3, PW4, and PW5 testified that a group of motorcyclists who were following the robbers informed them of the robberies. They told them that the robbers were armed, they were four and they were travelling in a yellow motorbike. They testified that they took the Mariakani route where the robbers were said to be headed and after a short while, they spotted a yellow motorbike with four people off the main road. They stopped them but the gang removed the rifles from the basket and a shootout ensued. Three robbers were gunned down. The Appellant who was the rider of the motorbike tried to escape but he was arrested by the members of the public. They recovered two rifles, the yellow motorbike, the basket with contained moneys, Kshs.368,900/- in various denomination, a knife, a jacket.

47. This evidence in my view is overwhelming and clearly places the accused at the centre of the commission of the offence herein as an accomplice within the meaning of Section 20 of the Penal Code.

48. While the trial Magistrate may have fallen short in the analysis an eventual finding relating to the CCTV footage evidence, alternative evidence abounds that proves the charge against the Appellant beyond reasonable doubt.

49. I have considered the defence mounted by the Appellant. In light of the evidence on record, the defence cannot possibly be true.

50. As to the sentence, the Appellant termed the sentence as harsh and excessive. It is noteworthy that the Appellant was sentenced to twenty (20) years imprisonment. The offence under section 296(2) attracts a mandatory death sentence. While sentencing the Appellant, the trial magistrate applied the principles in Muruatetu case. It therefore means that the Appellant was very lucky to have been sentenced to 20years imprisonment instead of the mandatory death sentence prescribed in law.

51. Suffice to note that the trial court fell into error by applying the dictum in Muruatetu case as the Supreme Court has since clarified that the decision addressed murder charges only. I would be inclined to enhance the sentence but since the State seems content with it, I leave the sentence undisturbed.

52. With the result that the Appeal lacks merit and is dismissed in its entirety.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE