[2023] KEHC 25288 (KLR)

Kariuki v Republic (Criminal Appeal 182 of 2013) [2023] KEHC 25288 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25288 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal 182 of 2013

J Wakiaga, J

November 15, 2023

Between

Samuel Gitau Kariuki

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in KIGUMO Principal Magistrate’s Court Criminal Case No 1321 of 2010)

Judgment

1. The Appellant was charged, tried convicted and sentenced to suffer death for the offence of robbery with violence, the particulars of which were that on 19th day of December 2010 jointly with another not before the Court and while armed with dangerous weapon namely Panga, robbed Beth Nyambura Mwaura of Kshs.5,500 and at or immediately before or after the time of robbery threatened to use actual violence on the said Beth Nyambura Mwaura.

2. Being dissatisfied with the said conviction and sentence, he filed this appeal and raised the following of appeal:a.His right to fair trial were violatedb.The case was not proved beyond reasonable doubtc.The trial Court violated the provisions of section 169 of the criminal procedure coded.The sentence was harsh and excessive

Submissions 3. Direction on the hearing of the appeal through written submissions was issued and on behalf of the Appellant, it was submitted that his rights to have an Advocate assigned to him under Article 50(2) (h) of the Constitution was not complied with in that he was not assigned an advocate throughout the trial in support of which reference was made to Republic v Karisa Chengo & 2 other [2017] eKLR where the Supreme Court stated that the right to legal representation at state expenses is a fundamental ingredient of the right to fair trial if substantial injustice would otherwise result. This position was reinstated in Bernard Kiprono Koech v Republic [2017] eKLR and therefore failure by the trial Court to inform the Appellant of his right to legal representation violated his right to fair trial which should lead to san acquittal.

4. It was submitted that the case was not proved beyond reasonable doubt in that the only witness who identified him was PW1 who did not state whether the identification was through visual or voice and that having warned himself of the danger of relying on a single identifying witness the Court did not consider the issue of grudge between him and the complainant.

5. It was submitted that the judgement did not comply with the provisions of Section169 of the CPC and that the sentence was harsh and excessive. The trial Court in stating that his hands were tied failed to take into account the Court of appeal decision in William Okungu Kittiny v Republic [2018] eKLR in which it was stated that death sentence was the discretionary punishment reserved for the highest and most heinous level of robbery with violence as was stated in James Kariuki Wagana v Republic [2018] eKLR and Leonard Kipkemoi v Republic [2018] eKLR.

6. On behalf of the Respondent, it was submitted that the Appellant was identified through recognition by pw1which was free from error, as was stated in Douglass Muthanwa Ntoribi v republic [2014] eKLR and Peter Okee Omukaga & another v republic [2011] eKLR.

7. It was stated that failure to provide the Appellant with legal representation was not fatal to the prosecution as there was no substantive injustice caused as the Appellant fully understood the charges facing him and was able to cross examine the witnesses and defend himself

8. It was contended that even if the Court did not comply with Section 169 of CPC, that did not mean that the conviction itself was wrong in support of which reference was made to Hawaga Joseph Ansanga Ondiasa v R Criminal Appeal No 84 of 2001 and Samwiri Senyange v R [1953] 20 EACA where the Court said that where there had not been a strict compliance with the provisions of section 169 of the Criminal Procedure Code, that will not necessarily invalidate a conviction.

9. On sentence it was submitted that death and life sentence still remain valid and that it is only the mandatory nature thereof which was declared unconstitutional

Proceedings 10. This being a first appeal, the Court is under a duty to re-evaluate the evidence a fresh to come to its own conclusion thereon as was stated in Okeno v Republic [1972] EA 32.

11. PW1 Beth Nyambura Mwaurawas in her kitchen when two men emerged and demanded for money from her. One of the men placed a panga on her neck and through the light from her lantern lump, she was able to recognise the Appellant who took the money from her. The following day she reported to the police and gave the name of the appellant, who shifted from his house thereafter and was arrested after three days. She was able to identify him to the police upon arrest.

12. PW2 PC Samson Kimollythe investigating officer stated that PW1 reported to the station that she had been robbed the previous night and that she gave the name of the Appellant whom she knew by name. They managed to arrest him and PW1 identified him.

13. When put on his defence DW1 Samuel Gitau Kariuki stated that on 12/12/2010 he was at Gakoigo Market when he was arrested by two police officers who told him that he had robbed the complainant who is his cousin with whom they had a grudge.

Determination 14. From the proceedings and submissions herein, I have identified the following issues for determination;a.Was the Appellant positively identifiedb.Was the prosecution case proved beyond reasonable doubt?

15. It is not in dispute that the alleged offence took placed at night and that the Appellant was identified by one identifying witness, the question which the trial Court failed to answer was whether the conditions prevailing were ideal for positive identification? The complainant stated that she was able to identify the Appellant by the use of latent lamp but the intensity of the said light was not stated. I would therefore agree with the submission by the Appellant that by failing to state whether the identification was visual or voiced his identification was not safe and free from error.

16. The trial Court further did not consider the Appellant’s defence of the existence of a grudge between him and the complainant and vital prosecution witnesses including the arresting officer who should have corroborated the prosecution case were not called to testify, leading to the conclusion that there were gaps in the prosecution case the benefit of which should have been given to the appellant.

17. I am however not persuaded by the Appellant’s contention that his right to free and fair trial were violated as the same was able to cross examine the two prosecution witnesses and further find that the fact that the trial Court in his one pager judgement did not comply with the provision of Section 169 of CPC was not fatal to the conviction.

18. On the issue of sentence, whereas the Appellant submitted that the sentence was harsh and excessive in view of the superior Courts’ decision on the mandatory nature thereon, I note that the Appellant had benefitted from the Presidential commutation thereof from death to life imprisonment and would not have interfered with the same had the appeal failed.

19. In the final analysis I find and hold that the Appellant identification was not safe and free from error and that there were doubts raised in the prosecution case leading to the only conclusion that the same was not proved beyond reasonable doubt and therefore his conviction was not safe.

20. The appellants appeal succeeds on conviction which is hereby set aside and the sentence quashed. The Appellant shall be set free forthwith unless otherwise lawfully held and it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 15TH DAY OF NOVEMBER 2023J. WAKIAGAJUDGEIn the presence of :Ms Gakumu for StateAccused – PresentJackline – Court Assistant