[2022] KEHC 11408 (KLR)

Lemagas v Republic (Criminal Appeal E005 of 2021) [2022] KEHC 11408 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11408 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E005 of 2021

JN Njagi, J

June 8, 2022

Between

Iltaramatwa Lemagas

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Marsabit PM`s Court Criminal Case No.317 of 2020 delivered by Hon. Mbayaki Wafula, SRM, on 22/6/2021)

Judgment

1. The appellant was convicted in counts 1, 2 and 3 for the offences of robbery with violence contrary to section 295 as read with section 296 of the Penal Code and was sentenced to serve 30 years’ imprisonment on each of the counts. He was further convicted in counts 4 for the offence of possession of firearm without firearms certificates contrary to section 4(3) of the Firearms Act, 2014 and in count 5 for the offence of being in possession of ammunition without Firearms certificate contrary to section 4(2)(a) as read with section 4(3) of the Firearms Act. He was sentenced to a fine of Ksh20,000/= in default to serve 2 years’ imprisonment on each of counts 4 and 5.

2. The appellant was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:1. That the learned trial magistrate erred in both law and fact by relying on uncorroborated and contradicting evidence tendered by the prosecution witnesses.2. That the learned trial magistrate erred in both law and fact by failing to note that the investigators of this case failed to investigate the case to the standard required by the law.3. That the learned trial magistrate erred in matters of law and fact by failing to note that the sentence was harsh and excessive.4. That the learned trial magistrate erred in matter of law and fact by failing to consider the appellant’s defence.5. That the learned trial magistrate failed to note that the exhibit was not found in the possession of the appellant.6. The learned trial magistrate erred in law by imposing an excessive sentence.

3. The brief facts of the case are that on the 3rd August 2020 the three complainants in counts 1, 2 and 3 were travelling in a Toyota Land Cruiser Prado motor vehicle from Marsabit town to a place called Guranit. Hussein PW4 was at the steering wheel while Kochale PW3 was at the co-driver`s seat. Ambrose Pw1 was seated at the back-left seat.

4. That on reaching a place called Elem they were stopped by a certain man at gun point. The driver stopped the vehicle. The man approached the driver with the gun pointed at the driver. He was also armed with a sword. Another person approached the co-driver`s side while armed with a rungu. The gunman demanded that they produce money and hand it over to his colleague. The driver handed over Ksh.50,000/= to the gunman`s colleague. PW3 handed over Ksh.20,000/= while PW1 handed over Ksh.11,000/=. The gunman demanded more money. The witnesses pleaded with them that they had no more money but the gunman was adamant. He threatened to stab the driver with the sword and shot in the air to scare them. PW1 gave him 7 Qatari currency notes and Ksh.31,000/=. Pw1 who was a licenced firearm holder stealthily drew out his pistol gun and shot the gunman on the face. He fell down. His colleague ran away. They took the gun and the sword. PW1 phoned the OCS and the OCPD, Laisamis. They left the scene. Policemen, who included CIP Mamu PW5 and PC Kipyegon PW6, later joined them and they returned to the scene. They found the person who had been shot lying about 30 meters from the road. He was still a life. He was the appellant. The police recovered two spent cartridges at the scene. They picked the appellant and escorted him to Marsabit County Referral Hospital. At the hospital PC Kipyegon searched him and recovered some Qatari notes. The gun and the sword recovered from the appellant were handed over to the police.

5. CI Mamu PW5 investigated the case. He prepared an exhibit memo and escorted the gun recovered from the appellant, the recovered 2 cartridges and PW1`s Glock pistol to the Government analyst. A Government analyst PW2 examined the gun recovered from the appellant and found it to be an Egyptian made Carbine assault rifle that was in good general and mechanical condition and was capable of being fired. The Glock pistol of PW1 was found to be a gun made in Austria that was in good general and mechanical condition. One of the spent cartridges recovered at the scene was found to have been fired from the carbine assault rifle and the other cartridge recovered at the scene was found to have been fired from Glock pistol of PW1. During the hearing the guns, the spent cartridges and the report of the firearms examiner were produced as exhibits.

6. When placed to his defence, the appellant stated that he found the motor vehicle parked. He then requested for water from the occupants of the motor vehicle and he was shot at. He denied that he was armed with a rifle and a sword.

Submissions – 7. The appeal was canvassed by way of written submissions of the appellant and the learned Senior Principal Prosecution Counsel Mr. W.P.Ochieng. The appellant submitted that the evidence adduced by the prosecution witnesses was uncorroborated, contradictory and inconsistent. That PW1 alleged that he threatened to shoot the driver for being uncooperative while PW4 alleged that he threatened to stab him with a knife for being uncooperative. That in addition PW1 alleged that he dragged the driver and started searching him. However, that the other witnesses alleged that they disembarked from the vehicle after he was shot. He submitted that it was not possible to search the driver while the driver was in the vehicle. That such contradictory evidence as adduced by the prosecution witnesses cannot give the assurance that a court needs to be satisfied that the case was proved beyond reasonable doubt as was held in the case of Philip Nzaka Watu v Republic (2016)eKLR.

8. The appellant submitted that the case was not investigated to the standard required by the law as the Investigating Officer only relied on what he was told by the complainants and did not gather independent evidence. That the police did not find him with the alleged rifle and no forensic evidence was adduced that he had handled it. Neither was he found with the other things that were alleged to have been recovered from him.

9. The state opposed the appeal and submitted that all the ingredients of the offence of robbery with violence were sufficiently proved. That it was proved by the witnesses PW1, 3 and 4 that the appellant accosted them while armed with a carbine rifle and that he was in company of another person who was armed with a rungu. That the evidence of the three witnesses was corroborative of each other. That it was proved that the appellant was armed with a dangerous weapon a gun, and that he was in the company of one other person. That it was proved that he threatened to stab the driver with a sword and that he was shot in the nick of time.

10. The state submitted that the incident happened in broad daylight and took about 30 minutes during which time the witnesses talked to the appellant in Kisamburu language as they pleaded with him not to kill them. That the appellant was arrested at the scene since he had been immobilized. That he does not deny being at the scene. That he was found with 7 riyal currency notes belonging to PW1 which evidence corroborated the evidence that PW1 gave him the said foreign currency. That the ballistics report confirmed that the carbine rifle had been fired at the scene as it matched the ammunition cartridge recovered at the scene.

11. It was submitted that the appellant`s defence was a mere denial and did not explain about the recoveries that were found in his possession. That it was proved that the carbine gun was recovered from him after he was shot. That the ballistics report confirmed that the gun had been fired at the scene thus corroborating the evidence of the witnesses that the appellant had fired in the air to scare them.

12. It was further submitted that the sentence imposed by the trial court was fair considering that robbery with violence is a capital offence with possible death sentence. That the trial court took into account the appellant`s mitigation and the period spent in custody while awaiting trial.

Analysis and Determination – 13. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated that:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

14. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and 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.

15. The learned trial magistrate relied on the definition of the offence of robbery with violence as set out in section 296(2) of the Penal Code and cited the Court of Appeal decision in the case of Oluoch v Republic (2005) KLR where it was held that the ingredients of the offence of robbery with violence are:a.The offender is armed with any dangerous or offensive weapon or instrument; orb.Or the offender is in company with one or more other person or personsc.Or at or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes, or uses other personal violence to any person.

14. The trial court accordingly found that the appellant was armed with a carbine rifle and a sword which were dangerous and offensive weapons. That the appellant was in the company of one other person who was armed with a rungu. That the appellant fired in the air as he robbed the complainants and threatened to stab the driver with a sword. That these facts sufficiently proved the offence of robbery with violence.

15. On my own evaluation of the evidence I have no doubt that the appellant was rightly convicted of the offence of robbery with violence. The evidence of the prosecution witnesses PW1, 3 and 4 was candid and cogent on how the appellant, while in the company of an accomplice, accosted them and robbed them at gun point. He was also armed with a sword. The gun was recovered by the witnesses after the appellant was shot at. It was examined by a ballistics expert who found it to be in good mechanical condition. There was credible evidence that the appellant fired in the air and threatened to stab the driver with the sword.

16. It was clear that PC Kipyegon PW6 searched the appellant at Marsabit County Referral Hospital in the presence of C.I. Mamu PW5 and found him with Qatari currency notes that were given to him by PW1 during the robbery. The appellant did not give an explanation on how he came into the possession of the foreign currency notes so soon after the theft. The fact of being found in possession of the foreign currency notes lends credence to the evidence of PW1 that he had given him the money.

17. The appellant argued that the evidence from the prosecution witnesses was contradictory. I have keenly examined the evidence of the three witnesses PW1, 3 and 4 and find no contradictions. What the appellant pointed out as contradictions were not as such. The conviction on the charges of robbery with violence were supported by cogent evidence that was not shaken by the defence of the appellant. The appellant’s defence that he was shot at when he went to borrow water from the occupants of the vehicle cannot be true. It is not believable that PW1 would have shot the appellant for the simple reason of borrowing water from them. The trial court rightly dismissed the defence. The three counts of robbery with violence were proved beyond reasonable doubt.

18. There was no doubt from the evidence adduced before the trial court that the appellant was the in possession of the Carbine gun that he used in the course of the robbery. The gun was examined by a firearms examiner PW2 and found to be a firearm as defined under the Firearms Act. The ammunition fired from the said gun was also examined by the same person and confirmed to be ammunition as defined under the Firearms Act. The charges in count 4 and 5 were sufficiently proved.

19. In the whole, the evidence adduced against the appellant was overwhelming. The appellant was rightly convicted of the 5 counts. The appeal on conviction is thereby dismissed.

Sentence – 20. The sentence for robbery with violence under section 296 (2) of thePenal Code is a mandatory death sentence. The trial court sentenced the appellant to 30 years imprisonment on each of the counts. The sentence therefore did not comply with the law. The prosecution however did not file a counter-appeal against the sentence nor did they ask for the sentence to be enhanced. It is the practice in our courts that before a sentence is enhanced during appeal, the accused has to be warned of that possibility beforehand. In this case the appellant was not warned that his sentence may be enhanced. The sentence meted out by the lower court will thereby stand.

21. The upshot is that the appeal lacks merit and is accordingly dismissed. For clarity, the commencement date of the sentence shall be the date of arrest, i.e. on 3rd August 2020.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 8TH DAY OF JUNE 2022. J.N. NJAGIJUDGEIn the presence of:Mr. Magero for RespondentAppellants:- Present in personCourt Assistant:- Peter14 days Right of Appeal.