[2010] KEHC 722 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

(Coram: Ojwang & Odero, J J.)

CRIMINAL APPEAL NO. 139 OF 2006

- BETWEEN -

KATANA MWADZOMBO....................................................................................................APPELLANT

- AND -

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

(Being an appeal from the decision of Senior Resident Magistrate Mr. P. M. Ochenja and the order and sentence by

Resident Magistrate Mr. A. M. Obura dated 12th May, 2006 in Criminal Case No. 581 of 2004 at Kwale Law Courts)

JUDGMENT

The appellant was one of two suspects charged with robbery with violence contrary to s.296 (2) of the Penal Code (Cap. 63, Laws of Kenya). It was alleged that the suspects jointly with others not before the Court, and while armed with machetes, iron bars, bows and arrows, on 5th April, 2004 at about 1. 00a.m., at Mirihini Village, Puma Location of Kwale District in Coast Province, robbed Samuel Murabu Chimvatsi of a television (Akashi by make), a video machine (LG by make), a radio cassette (LG by make) and a microphone – all valued at Kshs. 56,000/=? and immediately before or immediately after or at the time of such robbery, used actual violence to the said Samuel Murabu Chimvatsi.

The complainant (PW1) was at home, sleeping, with his family, at 1. 00a.m. on 5th April, 2004 when he was awakened by a bang on the front door; those at the door were flashing torches, and they used cutters to cut the inner bolt-locks, before forcing their way into the house. As his wife (PW2) screamed for help, PW1 noticed that the intruders were armed with a large murram-block, and he quickly locked the bedroom door, with himself, his wife and two young children inside. As PW1 held on to the bedroom door, the intruders issued a warning: “I was wasting their time and that when they got in, they would show me”. For some 10-20minutes, both PW1 and PW2 held on to the bedroom-door; and PW1 heard one of the suspects urge that they rummage elsewhere in the house, as taking too much time would allow neighbours to come.

It was PW1’s testimony that there was a lamp alight in the sitting room when the intruders entered, and that he was able to see them; and this lamp had been kept alight for the purpose of keeping a check on a sick child.

PW1 testified that he opened the bedroom door, after one of the attackers found him trying to escape through the back door; he now escaped through the front door which the suspects had broken, and saw one of them in the house, holding a torch. PW1 saw his radio already taken outside by the suspects, and as he ran away, one of them followed him, hitting him with the blunt edge of a machete. PW1, in bright moonlight, tripped and fell, and rose and began running in a different direction, being chased by the suspects; 0ne of them cut him with a machete in the right thigh; the attackers caught him and took him back to the house, where one of them stood guard. As the two attackers frog-marched PW1 into the house, they flashed their torch on their guard-accomplice: and PW1 recognised the man keeping guard ? “the son of a man who runs a posho mill nearby”. This third suspect was well known to PW1, for: “he passes by my house to drink water”. PW1 did not know the third suspect’s name, though; and this third man was armed with a club. PW1 had been hit with a club in the back, and he believed the third intruder to be the one responsible for that battery.

Rather than obligingly re-enter the house, PW1 was looking to escape, and turned and faced the three intruders: whereupon he was cut across the forehead, and he lost blood as he ran away, falling down in the bush, with the attacker with the bow and arrows, and the one with the machete closing in on him. PW1 said he could see his pursuers clearly, as he lay on the ground. The one with the bow and arrow aimed at PW1, but the one with the machete dissuaded him as, in his reckoning, PW1 was already “finished” and there was no need to waste arrows. The attackers resolved to return to the house and “finish the job with [PW2]”.

In the meantime, PW1 was able to rise and to report the on-going incident to neighbours, some of whom went to the locus in quo while some others took him to KinangoHospital for medical attention; he was admitted in hospital for two weeks.

On the following day, the complainant received word that the appellant herein had been apprehended by members of the public; and that his television, radio cassette, video machine and microphone had been recovered. PW1 identified the said items in Court. The complainant identified the two accused persons in Court, and testified that the appellant herein was armed with a club on the material night, and had hit him with the same as the other two suspects were taking him back into the house.

PW1 testified that the appellant herein was a familiar person; the two come from the same area; they used to fetch water from the same borehole; the appellant used to pass by his house while on the way from Kinango, as the appellant went to his (appellant’s) father’s posho mill; the appellant “would borrow water from my home as it is next to the road”; the complainant used to find the appellant at the posho mill many times.

PW2, who is the wife to PW1, testified that she had learnt on the material night, that her husband had been “badly cut and had been rushed to hospital”, and she proceeded to the hospital to see PW1; later that day, at 2. 00pm, she learned that certain items had been recovered by the Police; and she went to Kinango Police Station and was shown a television, a radio and a video machine which she positively identified as theirs, which had been stolen at the material time. It was PW2’s testimony that PW1 had been cut on the forehead, and remained admitted in hospital for one month.

Benjamin C. Bendago (PW3), the Assistant Chief for Kivyonzo Sub-Location in Kinango Location, was preparing to go to work on the material date, at 9. 00am, when the appellant herein was brought, under arrest, by members of the public. PW3 interrogated the appellant, and went along with the appellant to the locus in quo; and later, the appellant led him to a bush, about 1k.m. from the locus in quo, where PW3 recovered one black television, the property of the complainant; other items were also recovered, and PW3 handed all these over to Kinango Police Station, together with the appellant himself.

Nyawa Kalimbo (PW4) is the neighbour to whom the complainant first reported the robbery incident; he mobilized other neighbours and effected the arrest of the appellant herein in the first place. The neighbours had followed footprints from the locus in quo, and these led to the appellant’s home and, when it was ascertained that the appellant had not slept at home in the night, an arrest was made on the basis that he was the suspect. PW4’s evidence was supported by PW5, Malumbo Bisidi, another neighbour.

Peter Kathuku (PW6) is the clinical officer at Kinango Hospital who examined the complainant following the night attack; he testified that the complainant had come with a deep cut on the head, as well as other injuries which had lasted barely three hours. The complainant was given medication, and his head-wound stitched; and in PW6’s opinion, these injuries fell in the category of “grievous harm”. The witness filled in and signed the P3 medical-reporting form which was admitted in evidence.

The appellant made a short, unsworn statement in which he denied having committed the offence.

The learned Magistrate considered all the evidence, taking into account the fact that the complainant and the appellant herein came from the same neighbourhood and the appellant’s face was quite familiar to the complainant; that the initial inquiry had began with a following of footprints, and the search had led to the identification of the appellant herein as the suspect; and that the appellant himself had led the search party to the locus where the complainant’s stolen items were recovered. To the question, “how did he know that the complainant’s items were in the bush?” the Court set out the answer as follows:

“The inference to be drawn from his conduct is that he was party to the gang that robbed the complainant of his goods. The 1st accused [appellant herein] actually participated in the robbery. He failed to offer any explanation as [to] how he came into possession of the complainant’s goods.” The 1st accused has told this Court that the said property [was] planted on him by the prosecution’s witnesses. His explanation or defence does not hold water because he has failed to give any reason why the said goods were planted on him. There is no evidence of bad blood between the accused and the prosecution witnesses, hence they gave their testimonies in good faith and I have no reason to doubt them.”

The learned Magistrate convicted the appellant herein and, after treating him as a first offender and taking a statement in mitigation, the Court sentenced him to death, as mandated under s.296(2) of the Penal Code.

The appellant stated in his grounds of appeal as follows:

(i)he was not properly identified, as it is not certain what the state of the lighting was;

(ii)the recovery of the stolen items did not show him to have been one of the suspects;

(iii)the footprints leading to his home did not show him to have been the thief;

(iv)there was no security dusting of the stolen goods to show who had stolen and hidden them;

(v)the investigation conducted into the incident “was shoddy and fabricative”;

(vi)the prosecution case was contradictory;

(vii)his defence should not have been rejected.

The appellant came before this Court with pre-written submissions, and said he would have nothing to add orally; and even when given an opportunity to speak after the respondent’s counsel had made submissions, he elected to say nothing.

Learned counsel Mr. Muteti supported both conviction and sentence: on the basis that direct as well as circumstantial evidence showed the appellant to have been one of the suspects who attacked the complainant and committed robbery on the material night. Counsel urged that there was lighting in the complainant’s sitting room, and there was bright moonlight on the outside, and the complainant had been able to recognize the appellant herein as one of the attackers. Counsel urged that the face of the appellant was familiar to the complainant, as the two came from the same area, and on many occasions the complainant had seen him around.

But beyond direct identification, counsel urged, the stolen goods had been clearly linked to the appellant as the person who carted them away from the complainant’s house, following the robbery attack.

Mr. Muteti urged that the appellant had not offered any explanation as to how the stolen goods had come into his possession – and this would lead to the logical inference that he was the thief.

We have considered all the evidence, as well as the appellant’s written submissions and the respondent’s oral submission.

We have found no cause to doubt the veracity of the testimonies given by the prosecution witnesses. We have no reason to disbelieve the complainant when he says he was familiar with the appellant’s face, and that there was sufficient lighting enabling him to see the appellant at the time of the robbery and assault upon him. The evidence shows, in our opinion, that the appellant well knew the hiding place where the stolen goods were; and so these goods may be regarded as having been in his possession. It was the appellant’s burden to offer any innocent explanation of how the said goods found their way into his hands: failing which it may be concluded, on the basis of the doctrine of recent possession, that he was the thief. We have considered the evidence that the goods were found only a few hours after the robbery took place; and we take judicial notice that, especially at that time of night, there would be no opportunity for an innocent dealing with the goods, on the basis of exchange, or any other lawful transaction; and we come to the conclusion that the appellant was one of the thieves.

We dismiss the appeal, uphold the conviction, and affirm sentence as imposed by the trial Court.

Orders accordingly.

DATED and DELIVERED at MOMBASA this 26th day of October, 2010.

J. B. OJWANGM. ODERO

JUDGE JUDGE