[2014] KEHC 1225 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL APPEAL NO.16 OF 2010

(Being an Appeal from the judgment of the P.M. – Hon. A.O. Osodo

in BusiaCMC.No.271 of 2007 delivered on 10th July 2008)

KENNEDY ACHIENG OCHIENG..................................................APPELLANT

VERSUS

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

J U D G M E N T

1. Kennedy Achieng Ochieng (the Appellant) was arraigned before The Principal Magistrate at Busia on Two Counts of Robbery with violence contrary to Section 295 as read with Section 296(2) of The Penal Code. After hearing 6 Prosecution witnesses and the Appellants own evidence in defence, the Trial Magistrate convicted the Appellant as charged. He then imposed a Death sentence in respect to both Counts. This Appeal is against the said conviction and sentence.

2. It had been alleged in count 1 that he had:-

“on the 19th of February 2007 at Funyula township in Busia District within Western Province jointly with others not before Court while armed with dangerous weapons or offensive weapons namely a panga and a metal rod robbed Anthony Aligura of his mobile phone make Nokia 100 and cash money ksh.850/= all to the total value of kshs.7350/= and at or immediately before or after such robbery used actual violence to the said ANTHONY ALIGURA.”

He faced a 2nd Count that he had,

“On the 19th of February 2007 at Funyula township in Busia District within Western Province jointly with others not before Court while armed with Dangerous or offensive weapons namely a panga and a metal rod robbed STELLA MALLO of her mobile phone make Sony Erickson T100 suitcase and assorted clothings all valued at ksh.14,800/= and at or immediately before or immediately after such robbery used actual violence to the said STELLA MALLO.”

3. After Anthony Ali Aligura (PW1) had entertained himself to 2 bottles of beer at “Meeting Point Bar” along Bumala Sio port Road, he made his way home on foot. This was at about 11. 30pm on 19th February 2007. He was confronted by 3 people who ordered him to stop. He heeded their orders. They further ordered him to lie down. Again he obliged. One of them took his Nokia 1100 cell phone. They demanded money from him and at the same time cut him on the head using a panga. The Complainant gave them ksh.850/=. He was struck a second time this time on the chin when he tried to look at his assailants. In a bid for his life, PW1 ran and sought refugee in the home of Stella Malo (PW3). That portended trouble for PW2 as the assailants pursued PW1 into PW2’s house.

4. When PW3 opened the door to let PW1 into his house, three people followed in. They attacked her, beat her and cut her with a panga. The assailants also stole money, a cellphone Erickson T100, clothes and a jacket from her. The assailants then left and locked their victims in the house by locking the door from the outside.

5. PW1 and PW2 managed to open the door and intended to report their ordeal to the Police. But as they walked to the Police Station, they found a Police Inspector. The two then sought treatment at Nangina Hospital. A day after the two were invited to Funyula Police Station where they identified the Appellant in an identification parade. The manner in which the parade was arraigned and contested has turned out to be the Central controversy in this Appeal.

6. The two victims were on 20th February 2007 medically examined by George Wanga (PW2). He is a Clinical Officer at Busia District Hospital. He completed P3 Forms in respect to victims wherein he stated his opinion about the degree of injury they had sustained. For each of them, he assessed the injury as harm.

7. A few hours after their attack PW1 and PW3 reported the robbery to PC Wesley Kipkoech (PW 4), a Police officer who was on the beat with his colleague John Njiru within Funyula Township. PW4 noticed that PW1 had cut wounds on his head and chin while PW3 had cut wounds on her hand and face. These two Police officers sent the victims to hospital as they commenced a search for the suspects. The two Complainants had told them that they could identify the suspects. A suspect was arrested by P.C Musembi and P.C. Evans Bananu (PW 6). The two had acted on a tip off by an informer. PW4 recovered a panga, cap, a shirt, hockey stick and iron rod from the home of the Appellant. The Complainants had described the shirt and cap that one of the assailants wore during the attack. This witness also observed that the panga had some blood stains.

8. PW4 requested P.I Timothy Ndiwa (PW 5) to arrange an identification parade. PW5 told Court that he explained the purpose of the parade to the Appellant. The Appellant did not object. PW5 explains that he arranged a parade whose members were of similar complexion, size, age and height with the suspect. The suspect chose to stand between members 8 and 9. That PW1 positively identified the suspect. For the second identification, the suspect chose the same position, again he was positively identified by PW3. The officer countersigned the Parade Form after the accused person had signed it.

9. At the end of the Prosecution case, the Trial Court found that a prima facie casehad been established against the Appellant and he was put to his defence. In his sworn testimony, the Appellant denied the offence and said that on the material day he returned home from work in the evening and slept there until the next morning. That he was arrested on 20th February 2007 at 6. 15pm by two Police officers. He was on the following day, escorted by the Police to his house where a search was conducted. That the Police took a Kitenge shirt and two caps from his house. He however denied that the panga, metal rod and hockey stick belonged to him. The Appellant confirmed that he was picked out by the two witnesses in an identification parade.

10. That is the abridged version of the evidence that this Court is expected to re-evaluate (see Okeno –vs – Republic [1972]E.A. 32). But first the grounds of Appeal. The Petition raises 4 grounds which, paraphrased and collapsed are:-

a. That the identification Parade was not property and lawfully arranged and conducted and could not form a basis for conviction.

b. That the Trial Magistrate erred in law and fact in putting emphasis on weapons which were not recovered from the Appellant.

c. The Prosecution evidence was insufficient, contradictory and inconsistent.

11. In his written and oral submissions to Court the Appellant criticized the evidence on identification. He submitted that he was the only person who wore a hat during the identification parade. The Appellant further argued that the occurrence book which would have corroborated the recovery of the items allegedly made from his house was not produced in Court notwithstanding a Court order to this effect. That a negative inference should be made for this failure

12. For the State, Mr Obiri argued that the electricity light that was on in the home of PW3 favoured positive identification as PW1 and PW3 were able to see their attackers clearly in an attack that lasted about 5 minutes. It was also emphasized by him that the shirt worn by the Appellant during the attack was recovered from him. Finally that the Appellant was positively identified in a properly conducted Identification Parade. The State Counsel emphasized that even without the evidence of recovery of the clothes, the evidence of identification was sufficient to found a conviction.

13. From the ultimate words in the judgment, the Trial Court based its conviction on evidence of recognition and recovery of clothes and weapons of attack. This is what the Principal magistrate remarked,

“Considering all the evidence above, I find that the prosecution case is quite credible and consistent. The Accused person was properly recognized by the complainants during the robbery and the clothes that he wore at the material time together with the weapons the robbers were armed with were recovered in his house by the police officers. The accused person used violence during the robbery and injured the two complainants. I therefore find that the ingredients of both charges are proved beyond all reasonable doubt and I convict the Accused person as charged.”

14. From the evidence adduced by the Prosecution witnesses it is somewhat unclear whether the Prosecution based its case on recognition or identification. PW1 says that he knew the accused person before the incident and that on recording his statement to the Police he in fact mentioned his name. This is his evidence,

“The next day I went back to the Police Station and recorded a Statement. I mentioned the Accused person and Rasta (Kennedy). I knew him before the incident.”

He had known the Appellant because, the Appellant had been his patient at Nangina Hospital.

15. As for PW3, she had seen the accused person at Funyula Town prior to the incident and was able to pick him out from the Identification Parade.

16. The Investigating Officer (PW4) told Court that the two Complainants said that they could identify the suspects. In Re-examination he was slightly more explicit on this when he said,

“The Complainants said they could identify the suspects using his clothes and face.”

For PW6, he testified as follows:-

“I was on duty at Funyula Police Post when the Complainant, Antony reported that he had been robbed by a group of people whom he could identify.”

17. It seems to me that the Police found it necessary to arrange an Identification Parade because although the victims may have seen the suspect on occasions prior to the incident, the victims did not know the Appellant by name. In that regard the Identification parade may have been necessary.

18. So, did the circumstances of the incident favour positive identification? The evidence of PW1 was that at the point of his first attack he was unable to identify his tormentors.

This is how he described the moment and scene,

“I was going home when I saw three people. I could not identify them then.”(my emphasis)

19. According to PW1 and PW3, there were able to see the attackers when they followed PW1 into the house of PW3. It was the evidence of both witnesses that the lights in the house were on and provided from an electricity bulb. The evidence was also that the incident happened for a considerable period of time and this would provide sufficient opportunity for identification. PW1 put it at 5 minutes while PW3 put it at 30 minutes. Quite a discrepancy! However one may be tempted to conclude that in these circumstances the victims would have been able to see the faces and bodies of their attackers clearly!

20. This evidence on recognition was by two witnesses. It may therefore be argued by the State that a positive Identification had been established notwithstanding that enquiry as to intensity of the light and its relative position to the suspect had not been carried out by the Learned Magistrate. We, perhaps, would be persuaded by that argument if the witnesses had either described to the Police the suspect by name or otherwise or if he had picked them out in a properly conducted Identification Parade. There is no evidence that the witnesses either named the Appellant or positively described him to the Police. This as earlier stated may have been the reason why the Police found it necessary to arrange an Identification Parade.

21. At the Identification Parade in which the witnesses picked out the suspect, PW1 says that the Appellant wore a “Kitenge shirt and a grey cap.” This of course is not consistent with the evidence of the officer who arranged and conducted the parade who said that no member of the parade wore a cap. So there are two versions , which is to believed? If , however, the suspect was the only person who wore a cap during the parade then it cannot be said to have been conducted with scrupulous fairness because the witnesses believed that one of the assailants wore a cap at the time of the incident. Can it be ruled out that the witnesses merely picked out the suspect because of this connection? We reach a decision that the evidence on identification (or is it recognition?) was not safe enough to found a conviction.

22. Let us turn to the evidence of recovery of certain items from the house of the Appellant. PW4 says that he recovered a panga, hockey sticks, iron road, cap and shirt from the house of the accused. While the accused denies recovery of the panga, hockey stick and iron road, he concedes to the cap and shirt. PW1’s and PW3’s evidence was that the panga, hockey stick and iron rod were the weapons of attack while the cap and shirt were worn by the Appellant. For some reason, the Police did not complete an inventory on the recovery. So no inventory form was tendered in evidence. While there is no legal requirement that an inventory form is the only conclusive evidence to prove a recovery (see Machakos High Court Criminal Appeals 229, 230 & 231 of 2011 1) Raphael Yulu Muka & 2) Wambua Syuki Masal 3) Erick Kalulu Kirenenge –vs- Republic[2012] Eklr), its non-production may take some significance where recovery is hotly contested. Here the issue as to whether the panga, the hockey stick and iron rod were recovered from the house of the Appellant was the word of PW4 against that of the Appellant. And the occurrence book of 20th December 2007 which may have helped resolve the issue was not produced in Court notwithstanding that its production was ordered by the Court upon the request of the Appellant. In the circumstances there would be no basis for the Trial Court to believe one version and not the other.

23. What is to be said of the “Kitenge” shirt and cap recovered from the house of the Appellant. The Prosecution theory is that this was the shirt and cap worn by the Appellant on the night of attack. The evidence of PW1 was that the Appellant wore:

“a “Kitenge” shirt – brownish in colour. He wore a greyish cap.

The witness identified the shirt and cap recovered by PW4 from the house of the Appellant as those worn by him at the time of the Robbery. And PW3 she said,

“The accused was wearing this shirt MFI 6”

This evidence of PW1 and PW3 was not shaken or displaced on cross-examination.

24. In his Defence the Appellant conceded that a Kitenge shirt and two caps were recovered by Police from his house. He did not say that the Kitenge shirt and caps belonged to some other person. The recovery was on 21st February 2007. This was 2 days after the robbery. Even if one was to argue that there could be many people who own Kitenge shirts and caps, would it not be too much of a coincidence that boththe shirt and cap which were worn by the attackers to PW1 and PW3 were recovered from the house of the Appellant two day after the incident? We reach a conclusion that even overlooking the botched up Identification Parade, the recovery of the shirt and cap was sufficient to connect the Appellant to the Robbery.

25. The outcome. The Appeal is dismissed to its entirety.

F. TUIYOTT A. MABEYA

J U D G EJ U D G E

COUNTERSIGNED, DATED, DELIVERED AND SIGNED AT BUNGOMA THIS 12TH DAY OF NOVEMBER 2014.

J U D G E

IN THE PRESENCE OF:

GILBERT WANYON’GO……………………………..COURT CLERK

IN PERSON….………………………………………FOR APPELLANT

MR OIMBO………………………………………...FOR RESPONDENT