[2014] KEHC 6913 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 104 OF 2013

(CONSOLIDATED WITH HCRA 106 & 103 OF OF 2013)

LAWRENCE MAHIU KAMANJA....................1ST APPELLANT

JAMES KARIUKI KARIGU.........................2ND APPELLANT

TIMOTHY KARIUKI KAMAU......................3RD APPELLANT

VERSUS

REPUBLIC……....………................……………..…PROSECUTION

(Being an Appeal from the Conviction and Sentence by P.T. NDITIKA Principal Magistrate Baricho in Criminal Case No. 628 of 2012 on 17th May 2013)

J U D G M E N T

LAWRENCE MAHIU KAMANJA (1st appellant) JAMES KARIUKI KARIGU (2nd appellant) TIMOTHY KARIUKI KAMAU (3rd appellant)were jointly charged with the offence of Robbery with Violence Contrary to Section 296(2) of the Penal Code.

The particulars stated in the charge sheet alleged that on the 8th day of May 2012 at Kiinje village in Kirinyaga South District of Kirinyaga County, jointly with another not before

court robbed TABITHA WANGARE MURIUKI of one Farm Chem. Sprayer, one chargeable florescent bulb, one umbrella, ¾ bag of beans, ¼ bags of cow peas, assorted house hold goods, clothes, shoes and bag valued at Kshs.42,700/= and cash 300/= and at or immediately before or immediately after the time of such robbery wounded TABITHA WANGARE MURIUKI.

All the appellants denied the charges and the matter proceeded to full hearing. They were eventually convicted and sentenced to death. Being dissatisfied with the judgment, they each filed an appeal against the conviction and sentence separately. The appeals were subsequently consolidated into Kerugoya Criminal Appeal No. 104/2013.

We have looked at the grounds of appeal raised by the appellants which are quite similar. They are as follows:-

The charge sheet was defective.

The language used was unknown to the appellants.

The prosecution evidence was full of contradictions and inconsistencies.

The defence of the 3rd appellant was not considered.

They faulted their identification by the witnesses.

The case for the prosecution was that on 8th May 2012 at 7. 00 p.m, PW1 heard the dogs barking around her compound. She checked around using her electric torch but she saw nothing. When the barking stopped at 10 p.m she went to sleep. At 2 a.m she was woken up by the breaking of her door. People then stormed into the house demanding for cash and documents. They assaulted her, took her cash (Shs.300/=) and tore her clothes leaving her naked. They continued beating her and demanded for her torch which they took from her bedroom. She showed them how to light it. They took her beans, radio, clothes and other items mentioned in the charge sheet.

She was able to identify them before they left. But after they left, she realized that she had been injured on the leg and hand. She went to her neighbour (PW4) who screamed for help and people went to their rescue. She had injuries all over her body as confirmed by the clinical officer (PW2) who examined her and later produced the treatment card and P3 form as EXB.1&2. The injuries were caused by clubs and pangas.

PW1 claimed that she was able to identify the 1st and 2nd appellants by the use of the electric torch. The 3rd appellant was identified by PW3 who also identified the 1st and 2nd appellants.

After the robbery, PW4 called neighbours and they organized to take PW1 to hospital. She also confirmed that the 1st appellant is the village elder of Kaigi village; that he was called by the 2nd appellant who informed him of the attack on PW1 by robbers. PW5 the investigating officer stated that PW1 and PW3 properly identified the attackers and there was therefore no need for an identification parade.

In his defence,the 1st appellant gave a sworn statement in which he denied having committed the offence as alleged. He explained that he had been out of the country in April 2012 and returned on 20th April 2012. Thereafter he went on various missions and came back home on 3rd May 2012. He further stated that he was the village elder and a pastor; that on the night of 9th May 2012 he was called by PW3 and the 2nd appellant who reported to him the incident at PW1's home. He later accompanied police officers to the home of PW1 where he met the 2nd appellant and PW4. Thereafter he was engaged in several meetings over leadership and community matters. And because of his involvement in community activities,he was even threatened by unknown people, a matter he reported to the police. He was later arrested in this case.

The 2nd appellant elected not to say anything in his defence. The 3rd appellant denied the charges claiming that he was at his place of work in Murang'a on the date the offence was committed; that he went home on 18th July 2012. He denied knowing the 1st and 2nd appellants. He however admitted that it is PW1 who identified him to the police who arrested him.

When the appeal came before us for hearing, the appellants presented the Court with written submissions. The learned State Counsel Mr. Sitati opposed the appeal on the following grounds:-

There was sufficient light.

The appellants were properly identified.

The evidence of PW1-PW4 was overwhelming.

This being a first appeal, we are enjoined to re-consider and re-evaluate the evidence on record to arrive at our own conclusions. We are guided by the Court of Appeal holding in OKENO VS REPUBLIC [1972] EA 32andMWANGI VS REPUBLIC 2 [2004] KLR 28and we are aware that in determining this appeal, we should bear in mind that we did not have the advantage of seeing or hearing the witnesses.

She never mentioned the attackers to PW6 or other people////

We have considered the submissions by the appellants and the State and the grounds of appeal. We have also considered the evidence on record.

We find that there is ample evidence to confirm that a robbery occurred at the home of PW1 on the night of 8th May 2012; that her house was broken into and the items stated in the charge sheet stolen. There is evidence that the robbers were more than one and that actual violence was used on the complainant. She suffered serious injuries as confirmed by PW2.

Though the witnesses claimed that the robbers had been armed with weapons which were not indicated in the charge sheet, we find that the omission to state in the charge sheet that weapons were used in the robbery does not render the charge sheet defective. The cut wounds, bruises and swellings were found on PW1 were said to have been caused by blunt and sharp objects meaning that the robbers had been armed with blunt and sharp objects. Our finding therefore is that the offence of robbery with violence was proved.

We note that the offence was committed late in the night when PW1 and PW3 were asleep. There is no evidence of any recovery of the stolen items. The only evidence linking the appellants to this offence hinges on the evidence of identification by PW1 and PW3 (a minor).

Both witnesses, that is, PW1 and PW3 stated that they were able to identify the appellants by the light from the electric torch which was taken from PW1. In addition, the appellants had torches though they were not as powerful as that of PW1. And further that the robbers were in the house for quite some time. Both PW1 and PW2 were able to identify the appellants as people they knew well before. PW3 even knew them by their names. PW4 and PW6 who were among the first people to know of the incident and even went to PW1's aid said PW1 and PW3 did not at any point mention to them the identity of the robbers. In other words they did not know who the robbers were.

Even assuming that they had identified the robbers, what action did they take thereafter? The recorded evidence shows that they did not mention the appellant’s names to their rescuers. They did not also inform the police or any other authority. In SIMIYU & ANOTHER VS REPUBLIC [2005] 1 KLR 192 the Court of Appeal stated that :-

In every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given first of all by person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given.

The omission on the part of the complainants to mention their attackers to the police goes to show that the complainants were not sure of the attackers' identity.

According to PW5, he received the robbery report the same night it was committed; he visited the scene with another officer. They did not find the complainant as she had been taken to hospital. They went to the hospital and this is what he says he was told by the complainant (PW1) at page 13 lines 9 – 12

“She was able to identify 1st accused and 2nd accused who where outside holding a bag where the beans were being put into. I recorded statements by the grandchild who said that as her grandmother was being cut he was free and he was able to identify 1st, 2nd and 3rd accused and another at large; and others whom he could not identify”.

We are very uncomfortable with this evidence of identification of the appellants. PW5 stated that PW1 identified 1st and 2nd appellants while PW3 identified 1st – 3rd appellants. How were these three appellants identified to him? Was he given their names and/or descriptions? He did not provide the answer to these questions. In her evidence, PW1 stated the following at page 5 lines 28 -30

“I was able to identify two robbers when I was asked to put on the electrical torch. Its those who were stealing my beans. I was able to identify Maina Kariuki Karingu and Maina Kamanja. They are 1st and 2nd accused in the dock”.

But did she give these names to the police when she reported the robbery? In cross-examination by 1st appellant at page 6 line 14 – 16, she stated;

“I did not mention the suspects names when the police visited me at the hospital. I did not have any grudge, but I saw you among the robbers”.

If she did not mention the names to PW5 and the officers who went to visit her in hospital what was the basis of PW5's assertion that PW1 identified the 1st, 2nd and 3rd appellants? This clearly shows that PW5 was not a truthful witness. The argument by the State that PW1 could not give names of the attackers because she was injured and all that was important for her was to go to hospital for treatment cannot hold because this is a witness who walked to the home of PW4 to seek assistance. That is how PW6 appeared at the scene. She never mentioned the attackers to PW6 or anybody else. She was admitted in hospital only for a day. The question that we ask ourselves is - what stopped her from giving out the appellants names to PW6 and even to the police if truly she had identified them?

The State also submitted that PW3 could not give the names of the robbers he had identified as he was shaken. It is true that PW3 is a minor. So after how long was he able to give the names? There is evidence that on that night after the robbery, the 2nd appellant went to PW1's home. This is what PW4 stated at page 11 lines 11 – 15

“The complainant did not identify the attackers to me. Maina Kamanja came with the police at the scene. He is 1st accused. Maina Kariuki is 2nd accused. He was the first person I called when I got the report.

2nd accused called 1st accused and informed that the complainant had been attacked by robbers. I only saw 2nd accused at the home of the complainant. He did not come to my compound.”

From this evidence, it is clear that both the 1st and 2nd appellants went to PW1's home after the incident. Even PW3 who reported the incident to PW4 did not mention to her the persons who had attacked his grandmother. It is clear from the evidence that though PW1 and PW3 claimed to have known the three appellants very well and that they were neighbours, they did not give their names to any person in authority to form a basis for their arrest. In LESARAU VS REPUBLIC [1988] KLR 783the Court of Appeal stated the following regarding such identification;

“Where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. The identification evidence in this case was of very poor quality thus making the danger of mistaken identity even greater. That evidence could not be accepted as true and free from the possibility of error.”

The 2nd appellant was arrested on 13th June 2012; the 1st appellant was arrested on 17th July 2012while the 3rd appellant was arrested on 18th July 2012. If indeed the complainant (PW1) and PW3 gave names to the investigating officers and the appellants are their neighbours, why did it take them so long to have the appellants arrested?

PW5 stated that the 1st appellant disappeared and was living in Kimicha area, Kimingi village with a pastor. The said pastor was not called to testify before the trial court. What could have been so difficult about availing the pastor in court to testify to that fact?

The 3rd appellant in his defence raised an alibi saying he was in Murang'a working at the time of commission of the offence. This alibi defence was not challenged. It was the duty of the Prosecution to squarely place the 3rd appellant at the scene of the crime inorder to discredit his alibi; SeeLESARAU VS REPUBLIC (supra).

The appellants took issue with the language used during their trial. A perusal of the record shows that there was no indication at all of the language used even at the time the plea of the appellants was taken on 23rd July 2012. Throughout the proceedings after 23/7/2012, there is no mention of the language of interpretation. The record does not even show the language the witnesses testified in. The only prove that the appellants participated actively in the proceedings is from their cross-examination of the witnesses.

The Court has a duty to demonstrate through the record that an accused person understood the proceedings as he either understood the language used or the same was interpreted to him an a language that he understood. This is what the Court of Appeal held in the case of KIBATHA VS REPUBLIC [2007] 2 EA 245 when it was interpreting Section 77 of the repealed constitution;

“A court can only demonstratively show that the rights of an accused person under section 77 have been protected if its record shows that that has been the case. The record of the magistrate in this appeal does not show that the trial Court protected the appellant's right to have the proceedings interpreted to him in the Kikuyu language.”

In the above case, the appeal was allowed on that ground alone. The Constitution of Kenya 2010 provides for a right to interpretation of proceedings under Article 50(2)(m).

In view of the foregoing, we are satisfied that the appellants in this case were not properly convicted. Their convictions were not safe and they cannot be allowed to stand. We do find merit in the appeal and it is hereby allowed. We consequently quash the convictions and set aside the sentence. Each appellant is to be set free unless otherwise lawfully held.

Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KERUGOYA THIS 21st DAY OF FEBRUARY 2014.

H.I. ONG'UDI C.W. GITHUA

J U D G E J U D G E

In the presence of:-

Mr Sitati for State

The Appellants

Mbogo Court Clerk