[2019] KEHC 5807 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 99 OF 2017

KEVIN AMAYI SHITAMBASI ALIAS BOYI......................APPELLANT

VERSUS

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

(from the original conviction and sentence by E. Malesi, SRM, in Kakamega CMC Criminal Case No. 715 of 2015 dated 17/8/2017)

JUDGEMENT

1. The appellant was convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to serve death. He was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:-

1. That the learned trial magistrate grossly erred in law and in fact in finding the charge proved without observing that there existed discrepancies and inconsistencies regarding the date of the incident and variance in evidence.

2. That the learned trial magistrate grossly erred in law and fact in convicting and sentencing the appellant to death when the prosecution failed to prove ownership of the motorcycle.

3. That the learned trial magistrate gravely erred and /or misdirected himself in law and fact in excluding the evidence of identification by PW1 from error and doubt without observing that the same was seriously contradicted by that of Pw4 who filled the P3 form.

4. That the learned trial magistrate grossly misdirected himself in placing inordinate weight on the evidence of PW1 regarding identification without observing that the appellant’s name was not mentioned to the police who rescued him hereby demonstrating afterthought.

5. That the learned trial magistrate grossly erred in law and facts when he failed to observe that the circumstances at the scene were not favourable for positive identification hence PW1’s inability to give description immediately.

6. That the learned trial magistrate grossly erred in law and fact in basing the appellant’s conviction and sentence on flimsy, inadequate, fabricated inconsistent and doubtful evidence of the prosecution.

7. That the learned trial magistrate misdirected himself in law and facts in finding the charge proved without inquiring into the prosecution’s failure to summon crucial witnesses especially those who arrived at the scene and the purported owner of the motorcycle.

8. That the learned trial magistrate erred in law and facts in shifting the burden of proof to the appellant and ignoring the appellant’s defence.

9. That the trial did not meet the requirements of Article 50 of the constitution and especially after the appellant had expressed eminent prejudice by the trial court.

2. The state opposed the appeal.

3. The particulars of the charge against the appellant were that on the night of 23rd October, 2014 at Rosterman area in Kakamega Central District within Kakamega county, jointly with others not before court while armed with dangerous weapons namely a knife and rungus robbed Albert Mahagwa of a motor bike registration No. KMCX 794W make boxer red in colour, cash Ksh. 1,200/=, knitted cap black in colour all valued at Ksh. 91,300/= and during the time of such robbery used actual violence to the said Albert Mahagwa (herein referred to as the complainant).

Case for Prosecution –

4. The case for the prosecution was that the complainant was a motorcycle taxi (boda bada) operator. That on the material day at around 9 p.m. he was on his way home on his motor cycle when a person waved him down with the use of his mobile phone light. He stopped and asked the person what he wanted. The person told him that he wanted to go to town. He realized that the person was one known to him. He was seeing him in the motorcycle’s headlights. The person was locally known as “Boy” but his real name is Kevin Shitambasi. He asked him why he wanted to go to town at that hour. He pleaded with him to take him. He agreed. The person mounted onto the motor cycle and they set off towards town. That after a short distance the person started to strangle him with his right hand. He used the other hand to turn off the clutch of the motor cycle. The motor cycle went off. The appellant tried to switch it on but it did not work. He saw other people emerging from the bush at his front. When they reached him they started to beat him. He grabbed Kevin and they fell down together. The other people attacked him with a panga and cut him on the head and on the face. They took his wallet. He then heard “Boy” saying that he had died. He also said that he knew him. They stepped on his back. They lifted him up. He was hit on the eyes. The people then went away with his motorcycle.

5. Later a motorcyclist came along. A police vehicle went to the place. The appellant gave out his wife’s phone number. His wife PW2 was called and went to the scene. They took the complainant to Kakamega General Hospital on the police vehicle. He was admitted for about three weeks upto the 7/11/14. He lost his eye sight.

6. Cpl. Sofia Ibrahim PW3 was allocated the case for investigation. She visited the complainant at the hospital but she found him unconscious. She was not able to interview him. Later the complainant was discharged from hospital. He went to the police station and Cpl. Sofia recorded a statement from him. He stated that the person who had attacked him was known by an alias name of “Boy”. She issued a P3 form to him. The motorcycle was not recovered.

7. That on the 17/2/2015 the appellant was arrested in a police raid in Kakamega town over a separate case. Cpl. Ibrahim charged him with the offence. On the 13/3/2015 a clinical officer at Kakamega County Referral Hospital PW4 completed the complainant’s P3 form. He found that the complainant had total blindness on both eyes. He also had a broken tooth. During the hearing of the case the clinical officer produced the P3 form and the discharge summary as exhibits, P.Exh 1 and 2 respectively.

Defence Case –

8. When placed to his defence the appellant gave a sworn statement in which he stated that he stays at Rosterman in Kakamega town. That he used to be a photographer. That on the 20/10/2014 he was at home. He fell sick. He went to Kakamega General Hospital. He was diagnosed with hernia. Surgery was recommended. He was admitted upto 25/10/14. He went home. On 16/2/2015 he was at his house when he was arrested by a contingent of policemen. He was taken to the police station. Later on 20/2/2015 he was charged over this matter. He denied the charges. He produced a discharge summary from Kakamega County Referral Hospital that indicated that he was hospitalized on the date of the alleged offence.

Submissions –

9. The appellant submitted that there was variance between the evidence on record and the charge sheet. That the charge sheet stated that the offence was committed on 23/10/2014. That the complainant stated in cross-examination that he was attacked on the night of 22/10/2014 at around 9 p.m. That the discharge summary indicates the date of the incident as 21/10/2014. That the trial was thereby not related to any event of 23/10/2014. That it was unsafe for the trial magistrate to convict him on events related to 23/10/2014 when the evidence on record disputes the date.

10. The appellant submitted that he was convicted on the evidence of recognition yet the complainant did not give the name of the appellant at the earliest instance. That the complainant’s wife PW2 did not talk to her husband. That the discharge summary from the hospital indicated that the victim did not know his attackers on 7/11/2014 when he was discharged. That the investigating officer PW3 arrested the appellant over matters that were unrelated to the case of the complainant. Therefore that the evidence in record implicating the appellant is an afterthought and cannot be relied on to safely convict him of the offence.

11. The appellant further submitted that the trial magistrate erroneously rejected his sworn defence without giving proper reasons. That he rejected his discharge summary from the hospital on the basis of a document from the hospital that disowned his discharge summary as originating from the hospital. However that the document that disowned his discharge summary was not produced in court by its author. Therefore that his defence remains unchallenged.

12. In opposing the appeal, the prosecution counsel, Mr. Ng’etich, submitted that the appellant was identified to have been one of the robbers. That the complainant knew the appellant before the date of the incident. That the prosecution countered the alibi defence and produced evidence to show that the appellant’s discharge summary could not be traced to the hospital. The prosecution counsel urged the court to dismiss the appeal.

Analysis and Determination –

13. This being a first appeal the duty of the court is as was stated by the Court of Appeal in the case of Kiilu & Another –Vs- Republic (2005) IKLR 174 that:-

“An appellant in a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision in the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

14. The question that was before the trial court was whether the appellant was identified as one of the robbers. The trial magistrate held that the appellant was a person well known to the complainant. That the complainant did not have any grudge against him. That he recognized him in the motorcycle’s head lights and talked to him. That the complainant told his wife that it is “Boy” (the appellant) who had attacked him. That the prosecution produced a letter from the hospital denying the authenticity of the appellant’s discharge summary. That the document was therefore a forgery. That the fact that the appellant’s name was not given to the police in the first report was not fatal to the case because the complainant was in a bad health after the assault.

15. The complainant stated in his evidence that he had known the appellant since when he (the appellant) was young and going to school. That he recognized the appellant in the motor cycle’s headlights. That he had previously ferried the appellant on his motorbike in April, 2014. That he recorded his statement to the police in February, 2015.

16. The evidence against the appellant was that of recognition. It is settled law that before the court can convict on the evidence of identification in difficult circumstances such evidence has to be examined carefully to avoid convicting an accused person on evidence of mistaken identity. In Cleophas Otieno Wamunga –Vs- Republic (1989) eKLR the Court of Appeal held that:-

“We now turn to the more troublesome part of this appeal, namely the appellant’s conviction on counts 1 and 2 charging him with the robbery of Indakwa (PW1) and Lilian Adhiambo Wagude (PW3). Both these witnesses testified that they recognized the appellant among the robbers who attacked and robbed them……… What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about a miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleged to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach the evidence of visual identification was succinctly stated by Lord Widgery, CJ in the well known case of R vs Turnbull [1976]3 All ER 549 at page 552 where he said:-

‘Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.’”

17. The complainant was the only single identifying witness in the case. It is also settled law that the evidence of a single identifying witness has to be tested with great care for the court to satisfy itself that the accused is the person who committed the offence. In Sammy Kanyi Mwangi –Vs- Republic (2010) eKLR the Court of Appeal held that:-

“The law is clear that a fact may be proved by the testimony of a single witness and there is therefore no compulsion for the prosecution to summon a multiplicity of witnesses. But this Court has consistently been cautious about reliance on such evidence particularly in cases relating to identification and in Abdala bin Wendo & Another v R (1953) 20 EACA 166, it emphasized:

“…the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.””

18. In the case against the appellant there is no evidence that the complainant mentioned the appellant to the police before the appellant was arrested. In fact the appellant went to record a statement to the police in February, 2015 after the appellant was arrested. The complainant had been discharged from hospital in November, 2014. If he had known the person who had attacked him as the appellant he did not give any evidence that he made attempts for the appellant to be arrested yet the appellant hailed from his locality. The appellant was arrested over a different case and not the case to do with the complainant. The conduct of the appellant does not indicate that he knew the person who had attacked him.

19. The wife to the complainant PW2 said that the complainant told her that it is a person called “Boy” who had attacked him. The investigating officer said that it is the complainant’s wife who reported the matter to the police. She however did not state that the wife gave the name of the attacker to the police. The investigating officer’s evidence was that the appellant was mentioned by the complainant after he left hospital. The question then is why the investigating officer did not make attempts to arrest the appellant if they had a report that he is the one who had committed the offence.

20. The discharge summary notes made at Kakamega County Referral Hospital were that the complainant had been assaulted by people unknown to him. It would appear from the said notes that it is the complainant who gave that information to the doctors at the hospital. The investigating officer did not question the doctor who made the notes to find out whether that is actually what the complainant told them. The trial magistrate did not make any findings on the comments on the discharge summary. The fact then remains that the complainant told the doctors that he did not know his attackers.

21. The appellant produced medical notes from Kakamega County Referral Hospital that indicated that at the time the offence was committed he was admitted at the said hospital. Though the appellant produced the document late in the case during his defence the prosecution was given an opportunity to investigate the authenticity of the document. The prosecution produced a letter from the said hospital that indicated that the appellant had never been treated or admitted there and that the patient number stated in the discharge summary belonged to someone else.

22. The burden of proving the falsity of an accused’s alibi defence lies on the prosecution. In Victor Mwendwa Mulinge –Vs- Republic (2014) eKLR the Court of Appeal held that:-

“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution. See Karanja v Republic [1983] KLR 501. This court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought.”

23. The prosecution was given an opportunity to investigate the authenticity of the discharge summary produced by the appellant. They did not call any person from the hospital to disapprove the discharge summary. They did not produce the records that indicated that the admission number purported to belong to the appellant belonged to someone else. The person who investigated the appellant’s discharge summary is not known as he was not produced in court as a witness. The letter produced by the prosecution is questionable. The prosecution did not thereby disapprove the appellant’s alibi defence.

24. Upon my own re-evaluation of the evidence I find that the trial court did not interrogate carefully whether the appellant was indeed identified as one of the people who robbed the complainant. The court did not warn itself of the danger of convicting on the evidence of a single witness in a case where the incident took place at night. Apart from the evidence of the complainant there was no other evidence pointing to the guilt of the appellant from which the court could safely say that the evidence of the complainant was free from the possibility of error. I find that the evidence adduced in court against the appellant was not sufficient to sustain a conviction. His being charged with the offence appears to have been an afterthought.

25. The upshot is that the appeal is upheld. The conviction is therefore quashed and the sentence set aside. The appellant is set at liberty forthwith unless lawfully held.

Delivered, dated and signed in open court at Kakamega this 10th day of July, 2019.

J. NJAGI

JUDGE

In the presence of:

Mr. Juma for state

Appellant - present

Court Assistant - George

14 days right of appeal