[2023] KEHC 25103 (KLR)

Krop v Republic (Criminal Appeal E020 of 2022) [2023] KEHC 25103 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25103 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Appeal E020 of 2022

AC Mrima, J

November 8, 2023

Between

Dan Krop

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. S. K. Mutai (Senior Principal Magistrate) in Kapenguria Senior Principal Magistrate’s Court Criminal Case No. 4 of 2021 delivered on 12th July, 2021)

Judgment

Introduction: 1. The Appellant, Dan Krop, was charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on January 13, 2021 at 2100 hrs. at Suam Location within West Pokot County, the appellant, with others not before court, robbed Lomoler Limatiang of Kshs. 21,000/= and immediately after used actual violence to the said Lomoler Limatiang.

2. When arraigned before Court, the appellant pleaded not guilty to the offence. After a full trial, the appellant was found guilty and convicted as charged. He was sentenced to 10 years’ imprisonment. That was on July 12, 2021.

The Appeal: 3. The Appellant was aggrieved by the conviction and sentence. He filed a Petition of Appeal dated December 1, 2022 on December 5, 2022. He mainly challenged the identification of the assailant.

4. He lamented that the trial court erred in convicting him on the evidence of a single witness that was at risk of poor recognition of the perpetrator. He opined that his defence was rejected without sufficient reason. In his conclusion, he found that the prosecution failed to prove beyond reasonable doubt that the appellant had committed the offence.

5. He thus urged this court to allow the appeal by quashing the conviction, setting aside the sentence and that he be forthwith set at liberty.

6. During the hearing of the appeal, the Appellant relied on his written submissions filed on February 24, 2023. He buttressed the grounds and relied on case law.

7. The Appellant urged this Court to allow the appeal as prayed.

8. The Respondent on its part relied on its written submissions dated September 4, 2023 and filed on September 25, 2023. It opposed the appeal in arguing that the offence was properly founded. He urged for the dismissal of the appeal while submitting that the life sentence was constitutional and commensurate to the offence.

Analysis: 9. This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial court with a view to arriving at its own independent conclusions and findings (See Okono v Republic [1972] EA 74). In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v Republic [2004] KLR 81.

10. Having carefully perused the record, this court is now called upon to determine whether the offence of robbery with violence was committed, and if so, whether by the appellant.

11. Before dealing with the said aspects of the offence, I will render a brief recount of the evidence adduced at the trial.

12. The prosecution called three witnesses in a bid to establish the charge against the Appellant. PW1 was the complainant one Lomoler Limatiang. The mother to PW1testified as PW4. She was Eunice Chepserum Limatiang. A clinical officer from Kacheliba Sub-County Hospital testified as PW2. He was Solomon Tukei and the investigating officer from Kacheliba Police Station one No. 261696 PC Joseph Muriithi testified as PW3.

13. PW1 testified that on January 13, 2021 he went to Kacheliba market where he sold his cow for Kshs. 23,000/=. He was then accompanied by his brother one James (not a witness). That, after the sale, PW1 bought some items including beans, maize, sugar and animal drugs. It costed him Kshs. 2,000/=.

14. At around 9:00pm, he walked home alone. On his way he met three people whom he recognized one of them as the son of Lomorita (not a witness). They all walked in the same direction. As they passed a river, four people suddenly emerged from the bushes and demanded for money. PW1 ran away and was pursued by two of the attackers. They caught up with him. He was held his neck so tight that he was unconscious. On waking up, all his money had been stolen and he was in serious pain. He then walked back home and arrived thereat at around 5:00am. PW1 told his wife of the ordeal.

15. PW4 confirmed the injuries on PW1.

16. The incident was reported to the police at Kacheliba station on January 25, 2021. PW1 was issued with a P3 Form which was filled in by PW2. The injuries on PW1 were confirmed as maim since PW1 lost consciousness.

17. PW3 visited the scene and went to look for the appellant at his home. He was not there. The appellant went to the police station on January 26, 2021 after learning that the police were looking for him. He was arrested and accordingly charged.

18. PW3 confirmed recording of witness statements.

19. After close of the prosecution’s case, the trial court found that the appellant had a case to answer and was placed on his defence.

20. In his alibi sworn testimony, the appellant stated that he was at his home when the offence allegedly took place.

21. From the above factual matrix, this court will now juxtapose it with the legal principles guiding the offence of robbery with violence.

22. The offence of robbery with violence is a creation of sections 295 and 296(2) of the Penal Code. The provisions provide as follows: -295. Definition of robbery:Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296. Punishment of robbery:1. …..2. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

23. From the foregoing provisions, the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the aspect of violence.

24. Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft, the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto.

25. Two things must, therefore, be proved for the offence of robbery to be established. They are theft and the use of or threat to use actual violence.

26. Once the offence of robbery is proved on one hand, the offence of robbery with violence, on the other hand, is committed when robbery is proved and further if any one of the following three ingredients are also established: -(a)The offender is armed with any dangerous or offensive weapon or instrument, or,(b)The offender is in the company of one or more other person or persons, or(c)The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.

27. This court is alive to the confusion which has lingered over time in distinguishing the offence of robbery from that of robbery with violence.

28. To this Court, the confusion is real. The description of any of the two offences leads to the other. Indeed, that was one of the findings by an expanded Bench of the High Court in Joseph Kaberia Kahinga & 11 others v Attorney General [2016] eKLR which called for law reform to address the ambiguity.

29. Be that as it may, for purposes of establishing the offences pending any law reform which is far too long overdue, the difference between the two offences ought to relate to the circumstances under which they are committed and the gravity of the injuries sustained. This court will, therefore, adopt the following *intermediate approach that, whereas both offences connote theft and violence, for the offence of robbery with violence to be established the aspect of threat to use violence does not arise, but instead there must be evidence of actual use of violence on the person of the victim.

30. Therefore, if in the course of stealing, the offender only threatens to use violence on the victim, but no more than the threat, then the offence of robbery may be committed. However, in such circumstances, the offence of robbery with violence should not stand even if it is proved that the offender was armed with any dangerous or offensive weapon or instrument and/or the offender was in the company of one or more other person or persons.

31. Having said as much, this court joins the calling for immediate law reform to address the legal ambiguity.

32. On the basis of the above, this court will now apply the law to the facts of the case. First is the issue of identification of the offender.

33. There was only one identifying witness who was the complainant. In that scenario, care and extreme caution ought to be exercised to root out the possibility of mistaken identity even in respect of persons known to a witness.

34. Courts have settled the applicable parameters. In R v Turnbull &others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The court stated as follows: -... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? 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.

35. The Court of Appeal in Wamunga v Republic (1989) KLR 426 had the following to say on the matter: -… It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.

36. In a differently constituted bench, the Court of Appeal in Douglas Muthanwa Ntoribi v Republic (2014) eKLR in upholding the evidence of recognition at night held as follows: -…. On the issue of recognition, the learned Judge evaluated the evidence on record and emphasized that PW1 testified: -“I flashed my torch and I saw the accused he was 2 meters away from me. That the appellant was not only seen, but was positively and correctly identified or recognized by PW1, the complainant.”The Learned Judge further noted that the complainant testified he used to see the appellant in town. It is our considered view that from the evidence on record, the identification of the appellant based on recognition was free from error...”

37. Again, the Court of Appeal in Criminal Appeal No 274 and 275 of 2009 at Eldoret in Peter Okee Omukaga &another v Republic(2011) eKLR had this to say on the evidence of recognition at night: -… We have re-examined the evidence upon which that conclusion was made, and we find that it was well founded. We have no doubt whatsoever that Francis, John and Rose were familiar with the appellants; that Francis and John had known them by appearance as ‘neighbours from the village’, that they had played football with them long time ago, and that their voices were so familiar to them. Accordingly, we have no reason to disturb that finding and we dismiss that ground of Appeal. We also reject the argument that failure to hold an identification parade, and the non- recovery of the stolen articles made conviction unsafe. As this was a case of identification by recognition, an identification parade was unnecessary. The non-recovery of the stolen items did not in any way point to the innocence of the appellants.

38. Applying the above to this case, the attack on PW1 was at night and quite sudden. Four people emerged from the bushes and pounced on PW1. He ran away and was pursued by two of them. He was caught up and was profusely assaulted until he lost consciousness.

39. PW1 did not address the issue of how he recognized that the Appellant as one of the attackers well. PW1 stated that he met three people walking in the same direction as he went home. One of them was the son of Lomorita. When they reached at the river, four people emerged from the bushes and demanded for money. He ran and was caught up, beaten until he lost consciousness.

40. PW1 did not state that the appellant was one of the three people he met on the road on his way home. It, therefore, means that the Appellant must have been among the four attackers. PW1 did not state that he had any moment with the attackers. He was suddenly confronted by people who demanded for money. Knowing that he had some money, PW1 decided to run. He did not get far. He was caught up and held by the neck. He was seriously assaulted. In such a case, there must have been a fight or a struggle, at the very least, between PW1 and the attackers.

41. Further, it was PW1’s testimony that the attackers demanded for money at the river. He did not, however, state whether he recognized the Appellant’s voice.

42. There was also the issue of the time taken by PW1 to report the matter. The matter was reported to the police around 2 weeks later. There was no explanation as to the time lapsed.

43. The Appellant went to the police station on learning that the police were looking for him. He did not flee. He denied committing the offence and stated that he was at his home at the alleged date and time.

44. Having considered the totality of the evidence on identification, this court finds that the then prevailing circumstances did not favour a positive recognition of one of the offenders as the appellant. Therefore, the court finds that the identification of the appellant as the aggressor by way of recognition was doubtful and in error.

45. Having found as such, this court does not need to consider the other aspects of the appeal as that will be purely academic.

46. The court now returns the verdict that the appellant was not positively identified as one of those who attacked PW1.

Disposition: 47. Flowing from the foregoing, the appeal is successful and the following orders do hereby issue: -a.The appellant’s appeal against the conviction and sentence is merited.b.The conviction is hereby quashed and the sentence of 10 years’ imprisonment set-aside.c.The appellant is hereby set at liberty unless otherwise lawfully held.d.File is hereby closed.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KAPENGURIA THIS 8TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Dan Krop, the Appellant in person.Mr. Makori, Learned Senior Assistant Director of Public Prosecutions instructed by the Office of the Director of Public Prosecutions for the Respondent.Juma/Hellen – Court Assistants.