[2017] KEHC 2995 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEALS NO 5 OF 2016 & 86 OF 2014

LEONARD KAMAU MUCHIRI…………………….....….......………………..…...….1ST APPELLANT

RAPHAEL OLUOCH ODIPO……….………………........……………….…….……2ND APPELLANT

VERSUS

REPUBLIC ……………………………….…………………………………..………….RESPONDENT

(An appeal against the original conviction and sentence of Hon. T.A. Odera PM in Criminal Case No. 537 of 2012 arising from a judgment delivered on 20th February 2014 in the Principal Magistrate’s Court at Mavoko)

JUDGMENT

The 1st and 2nd Appellants were among five accused persons charged in the trial court with two counts of the offence of robbery with violence (being counts I to IV) contrary to section 295 as read with 296(2) of the Penal Code; with the 2nd Appellant being charged with an alternative offence to Count I of handling stolen goods contrary to section 322(1) as read with section 322(2) of the Penal Code. The 1st Appellant was in addition charged with an additional count II of rape contrary to section 3(1)(a)(c)(3) of the Sexual Offences Act, with an alternative offence of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act.

The 1st and 2nd Appellants were convicted of count I of robbery with violence, while the 1st Appellant was also convicted of count IV of robbery with violence and count II of rape. The 1st and 2nd Appellants were both sentenced to suffer death for the conviction of count I of robbery with violence, and the 1st Appellant was in addition imprisoned to ten years for the conviction for rape.

The particulars of the two counts of robbery with violence were as follows: for count I it was stated that on the 21st day of June 2012 in Athi River District within Machakos County, jointly with others not before court, and being armed with axes pangas, and torches, the 1st and 2nd Appellants robbed E W M of her mobile phone make Nokia 2700 valued at Kshs 9,000/= and cash 20,000/= all valued at Kshs 29,000/= and immediately after the time of such robbery injured the said E W M.

The particulars of count IV were that on the 21st day of June 2012 at Ruoro village in Athi River District within Machakos County, jointly with others not before court, being armed with axes, pangas, and torches, they robbed Kefa Onduso Obara of three mobile phone makes Nokia 5210, Samsung and Orange, one television set make Sony Wega valued at Kshs 8,500/=, a DVD Player make Sony valued at Kshs 6,500/=, cash 14,500/= , and a wallet with all his documents, all valued at Kshs 29,500/= and immediately after the time of such robbery used actual violence to the said Kefa Onduso Obara.

The particulars for the offence of rape were that on the 21st day of June 2012 in Athi River District within Machakos County the 1st Appellant intentionally and unlawfully caused his penis to penetrate the vagina of E W M by use of force and threats. As regards the offence of handling stolen property, the charge sheet stated that on 8th October 2012 at Dandora Estate, within Nairobi County; otherwise than in the course of stealing, the 2nd Appellant dishonestly received a mobile phone make Nokia 2700 knowing or having reason to believe it to be stolen.

1st and 2nd Appellants are aggrieved by the judgment of the trial magistrate and have preferred these appeals by way of their respective Amended Petitions of Appeal they filed in court. The Appellants also availed to the Court written submissions on their appeals during the hearing.

The grounds of appeal by the 1st Appellant in his Memorandum of Appeal dated and filed on 31st July 2015 are that the Trial Magistrate erred in law and in fact by convicting the 1st Appellant on contradictory, unreliable and circumstantial evidence that did not meet the threshold of the criminal standard of proof. Further, that the trial magistrate erred in shifting the burden of proof to the 1st Appellant, applying wrong principles of law and considering extraneous facts in convicting the said Appellant.

The 1st Appellant’s counsel, M. Mutinda & Associates filed submissions dated 27th March 2017 wherein it was urged on the ground of the application of wrong principles of law that the charge sheet in the trial Court was duplex, as section 295 of the Penal Code provides for the offence of simple robbery whose punishment is spelt out in section 296(1) whereas section 296(2) of the Penal Code provides for the offence and punishment for robbery with violence. Reliance was in this regard placed on the Court of Appeal decision in Joseph Njuguna Mwaura & 2 others vs Republic (2013) e KLR, and it was submitted that the 1st Appellant was thereby prejudiced and embarrassed in his defence.

In addition, that no evidence of the rape of PW2 was tendered and the identification of the 1st Appellant was erroneous, as the identity and sufficiency of the solar power used to identify the Appellant by PW1 and PW2 was not established. Reliance was placed on the decisions in Maitanyi vs Republic (1986) KLR and R vs Turnbull (1976) 63 All E.R. 549 in this respect. Furthermore, that there was a wrong finding that PW3 identified the 1st Appellant by his voice, as there was no reason given why PW3 did not inform the police at the earliest opportunity that she knew the 1st Appellant and that he is the one who attacked her. The decision in Sammy Kanyi Mwangi vs Republic, (2010) e KLR was cited for this position.

The 2nd Appellant in his Memorandum of Appeal filed in Court on 7th May 2014 cited the same grounds of appeal as the 1st Appellant, and in addition raised the grounds that the trial magistrate erred in overlooking the fact that the first report made by the complainants at the police station did not identify the 2nd Appellant nor give his description; by relying on hearsay evidence and by rejecting the 2nd Appellant’s defence.

The 2nd Appellant’s defence counsel, John Swaka Advocate, filed submissions dated 3rd August 2016, wherein it was contended that firstly, the 2nd Appellant was subjected to an unfair trial as his name did not appear in the charge sheet, and the evidence adduced was at variance with the charge sheet. Secondly, that the 2nd Appellant was not at the scene of crime and was never identified at an identification parade. Thirdly, that the doctrine of recent possession did not apply as the chain of possession of the phone sold to PW4 was not confirmed, and there was no evidence of the sale. Lastly, that the trial magistrate erroneously rejected the 2nd Appellant’s defence which was unshaken upon cross-examination.

Ms Rita Rono, the learned Prosecution counsel opposed the 1st Appellants appeal, but appears to have conceded the 2nd Appellant’s appeal in submissions she filed in Court dated 3rd August 2017. It was submitted therein that the Appellants were aware during the trial that they were facing the offence of robbery with violence and the duplicity in the charge sheet was therefore not fatal. Reliance was placed on the Court of Appeal decision in Paul Katana Njuguna vs Republic (2016) eKLRin this regard.

In addition that the ingredients of the offence of robbery with violence as set out by the Court of Appeal inOlouch vs Republic (1985) KLRwere established as the 1st Appellant was positively identified by PW1, PW2 and PW3 during the robbery, and PW2 gave evidence that it is the 1stAppellant who took her outside and raped her.

The Prosecution counsel however noted that PW1, PW2, PW3 and PW4 testified that they did not see the 2nd Appellant on the material night, and the only link between the 2nd Appellant and the offence of robbery with violence was that he sold a mobile phone that was stolen from PW2 to PW9.

As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic[1973] EA 32).

The Prosecution in this regard called eleven witnesses to testify in the trial court. PW1 (a minor called M M); PW2, (E W M, the said minor’s mother); PW3 (Sara Kefa); and PW4 (Kepha Obara Onduso) all testified as to the two incidents of robbery that both occurred on the night of 21st June 2012. PW5, who was Police Constable Hosea Koech testified as to the reports made of the robberies. PW6, Dr. Mwagure Kevin, gave medical evidence as to the medical examination of PW1 and produced a filled P3 form with the results of the examination.

PW7, Police Corporal James Momanyi testified that he arrested the 1st Appellant on 22nd June 2012 upon receiving a tip from an informer, and PW8, Police Inspector Anthony Waithaka, conducted the identification parade in which the 1st Appellant was identified by PW2 and PW3. PW9 was Paul Ngema Wakaba who testified that on 8th October 2012 he was sold a phone make Nokia 2700 by the 2nd Appellant, who he knew from before. Police Constable Simon Wanjohi Muchiri (PW10) on his part testified that he arrested the 2nd Appellant after he investigated the communication records of the said phone, and traced it to the said Appellant who had sold it to PW9.

The last witness (PW11) was Chief Inspector Johnson Milimi, the Investigating Officer, who produced the exhibits recovered during investigation of the robbery and rape incidents. Both the 1st and 2nd Appellants when put on their defence denied any knowledge of and commission of the offences.

After considering the grounds of appeal, submissions thereon and evidence adduced in the trial Court, I find that the main issues raised by the 1st and 2nd Appellants in their appeals are firstly, whether the charge sheet was defective; secondly whether their identification was proper; and lastly, whether that they were convicted on the basis of consistent, reliable and sufficient evidence.

On the first issue of the defective charge, the duplicity of the charge sheet in Counts I and IV is not contested by the Prosecution. I am in addition guided by the decision of a five-judge bench of the Court of Appeal in JosephNjuguna Mwaura & 2 Others v Republic [2013] e KLR (Criminal Appeal No 5 of 2008) that explained and laid to rest the reasons why charging an accused person with the offence of robbery with violence under sections 295 and 296(2) of the Penal Code would amount to a duplex charge.

The said Court, while following its earlier decisions in Simon Materu Munialu vs Republic[2007] eKLR (Criminal Appeal 302 of 2005) andJoseph Onyango Owuor & Cliff Ochieng Oduor v R[2010] eKLR (Criminal Appeal No 353 of 2008), stated as follows:

“Indeed, as pointed out in Joseph Onyango Owuor & Cliff Ochieng Oduor v R (Supra) the standard form of a charge, contained in the Second Schedule of the Criminal Procedure Code sets out the charge of robbery with violence under one provision of law, and that is section 296. We reiterate what has been stated by this Court in various cases before us: the offence of robbery with violence ought to be charged under section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence which are either the offender is armed with a dangerous weapon, is in the company of others or if he uses any personal violence to any person.

The offence of robbery with violence is totally different from the offence defined under section 295 of the Penal Code, which provides that 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 to property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under section 295 and 296 (2) as this would amount to a duplex charge.”

I am also persuaded by the explanation by the Court of Appeal in Paul Katana Njuguna vs Republic(2016) eKLRthat as the offence of robbery with violence includes the elements of the offence of robbery, if the particulars of the charge sheet show the elements of the offence of robbery with violence which are proved, then this is a defect that is not fatal and can be cured by this Court under section 382 of the Criminal Procedure Code.

The converse position therefore is that if the evidence adduced pursuant to such a charge does not disclose the offence of robbery with violence, then this is a defect that is not curable under section 382 of the Criminal Procedure Code, for reasons that there will be two offences disclosed by the charge namely simple robbery and robbery with violence, which offences attract different penalties under the law, and prejudice would be caused to an accused person in this regard as it would not be clear what offence or sentence is applicable to him and to which he should raise a defence.

This Court will therefore have to also interrogate the other issues raised of the identification of the Appellants, and whether there was sufficient evidence to convict the Appellants for the offence of robbery with violence, to be able to make a determination as to whether the defects in the charge sheet as regards Counts I and IV were fatal or not.

The evidence that was adduced on the issues raised were by PW1 who was a minor, and PW2, who was the minor’s mother, who testified as to the first robbery incident which is the subject of count 1. They testified that they heard the assailants break window grill to their house at around midnight on, and saw three men, one of whom had an axe and another a panga. Their phones and money was taken during the robbery, and PW1 and PW2 were also defiled and raped during the robbery incident.

PW3 and PW4 who were husband and wife also testified as to the attack on their home and the items which were taken by the robbers, which were a television, DVD mobile phones and money. PW3 testified that she knew the 1st Appellant from before as they worked in the same market for 8 months and she recognised his voice during the attack when he said “wapi mzee”. Further, that she was able to see him through the torches the robbers had during the attack and that he was carrying an axe.

The 1st Appellant has contested his identification as the person who carried out the robberies. As regards the robberies in count 1, the evidence of both PW1 and PW2 is that there were security lights on in the house from solar power, the attackers had torches, and they both saw the 1st Appellant with an axe. Further, that the robbery incident took about 20 minutes. In addition PW2 identified the 1st Appellant in an identification parade.

I am in this regard guided by the guidelines on visual identification set in the case of Mwaura v Republic [1987] KLR 645, in which the Court of Appeal held, inter alia, that:

“In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”.

The evidence of identification at night must also be tested with the greatest care using the guidelines in Republic - v- Turnbull, (1976) 3 All ER 549 and must be absolutely watertight to justify conviction as held inNzaro -v- Republic, (1991) KAR 212andKiarie - v- Republic, (1984) KLR 739. In the case of Maitanyi -v- Republic,(1986) KLR 198,the Court of Appeal stated that in determining the quality of identification using light at night, it is at least essential to ascertain the nature of the light available, what sort of light, its size and its position relative to the suspect.

I find that the circumstances of the identification of the 1st Appellant by PW1 and PW2 were favorable for a positive identification, as there was light from multiple sources, being the solar power lights in the house and the torches the robbers had. In addition, his identification was corroborated by the two witnesses, and by the identification parade.

As regards Count IV, I find that the circumstances of his identification of the 1st Appellant were not favorable for the reasons that PW4 testified that he was not able to identify the robbers, and PW3 who was a single identifying witness, testified that the source of light for identification during the robbery which took place at night was moonlight and the torches the robbers had, and also by recognition of the 1st Appellant’s voice.

In addition to the difficult circumstances in which the identification was taking place, there was also contradictory evidence by PW3 as to her location when she identified the robbers as she testified that she went to the children’s bedroom and did not leave the room, while the items that were stolen were taken from the sitting room.

On PW3’s voice recognition of the 1st Appellant’s voice, this Court notes that firstly on cross-examination PW3 did not make a report that she knew any of the attackers. Secondly, the Court of Appeal in Karani v Republic [1985] KLR 290 and in Mbelle v. R [1984] KLR 626 held that identification by voice nearly always amounts to identification by recognition, andlaid down the requirements for a court to find recognition by voice identification as follows:–

(a) The voice was that of the Accused.

(b) The witness was familiar with the voice and recognized it.

(c) The conditions obtaining at the time it was made were such that there was no mistake in testifying to what was said and who had said it.”

PW3 in this respect testified that she had previously known the 1st Appellant as “Kama” for six months, and that he worked as a water vendor in the same market where she worked. However, PW3 did not give details of her previous interactions with the 1st Appellant, and particularly if the 1st Appellant had ever talked to her before the incident, how many times and the last such interaction.

The fact that the PW3 was familiar with the 1st Appellant and used to see him in the neighbourhood is only reliable evidence when it comes to visual identification. For voice recognition to be established, the prosecution needed to prove that the 1st Appellant in addition to being a neighbour at work, had also been talking and interacting with PW3 before the incident, which was not done. In the absence of such evidence, the Court cannot definitely find that the voice heard by PW3 was that of the 1st Appellant, or that PW3 was familiar with the said voice. I therefore find that there was no positive identification of the 1st Appellant as the person who was involved in the robbery in Count 1V and he was convicted erroneously for that count.

As regards the 2nd Appellant, PW1, PW2, PW3 and PW4 all testified that they did not see the said Appellant at the scene of the robbery.

On whether the evidence adduced was reliable and sufficient to sustain the convictions of robbery with violence, section 296 (2) of the Penal Code provides as follows with respect to the said offence:

“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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

The prosecution must therefore prove theft as a central element of the offence of robbery with violence, as the offence is basically an aggravated form of theft.

Theother elements of the offence of robbery with violence were elaborated by the Court of Appeal in Ganzi & 2 Others v Republic[2005] 1 KLRand in Johanna Ndungu Vs Republic,Cr. App No. 116 of 2005 (unreported) as follows:

1. If the offender is armed with any dangerous or offensive weapon or instrument, or

2. If he is in the company with one or more other person or persons, or

3. If at or immediately before or immediately after the time of the robbery, he wounds, beats strikes or uses any other violence to any person.

I am alive in this regard to the requirement that proof of any one of the ingredients of robbery with violence is enough to base a conviction of robbery with violence under section 296 (2) of the Penal Code as was held in Oluoch vs Republic, (1985) KLR 549.

In this regard, in addition to the evidence stated in the foregoing given by PW1, PW2 on the robbery incidents involving the 1st Appellant, PW6 brought medical evidence of the defilement of PW1, which in my view was sufficient evidence of the violence that was meted out during the robbery, irrespective of no such medical evidence having being brought with respect to PW2.

It is thus my finding that all the elements for robbery with violence were established as against the 1st Appellant with respect to Count 1, but not with respect to Count IV.

Coming to the conviction of the 2nd Appellant for the offence of robbery with violence in Count 1, I concur with the Prosecution that in addition to the 2nd Appellant not having identified during the robbery, the doctrine of recent possession was erroneously applied to him both for Count I of robbery with violence for which he was convicted, and also for the alternative offence of handling stolen property.

The doctrine of recent possession is stated in the case of Malingi vs Republic(1989) KLR 227 as follows:

“The doctrine is one of fact. It is a presumption of fact arising under section 119 of the Evidence Act, Cap 80 Laws of Kenya which provides:

“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

So as applies to the offence of theft or handling, recent possession raises a presumption of fact that the one in possession is either the thief or guilty receiver (R – v – Hassan s/o Mohamed (1948) 25 EACA 121). The trial court has the duty to decide whether from the facts and circumstances of the particular case under consideration the accused person either stole the item or was a guilty or innocent receiver. By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn, that he either stole it or was a guilty receiver.”

The Nokia 2700 phone that was stolen during the robbery in Count I was recovered in the possession of PW9, and not in the 2nd Appellant’s possession. The 2nd Appellant denied that the said Nokia Phone was in his possession, or that he sold it to PW9. Lastly, the said phone was stolen on 21st June 2012 and recovered after a period of about 3 months on 8th October 2012 in the actual possession of PW9.

There is therefore doubt raised as to whether the said possession was recent, as a period of three months had lapsed since the robbery and there is the possibility that the stolen phone could have changed hands variously during that period. More importantly, the said phone was not found in the possession of the 2nd Appellant and he cannot therefore be deemed to have been in possession of the same, or to be handling stolen property. The conviction of the 2nd Appellant was therefore erroneous.

From the foregoing findings, it is evident that that it is only the charge of robbery with violence in Count I that is supported by evidence in relation to the 1st Appellant only, and whose defect is therefore curable under section 382 of the Criminal Procedure Code. The charge in Count 1 is not supported by evidence in relation to the 2nd Appellant, while the charge Count IV is also not supported by the evidence in relation to the 1st Appellant, and it is my finding that the duplicity in the said Counts was thereby fatal, as the gaps in the prosecution’s case make it unsuitable to have a retrial.

On the conviction of the 1st Appellant for the offence of rape in Count II, this Court has already found that he was positively identified by PW1 and PW2 during the robbery incident in Count 1. In addition PW2 also testified as to what transpired during the robbery. Her evidence was that the said 1st Appellant while armed with an axe took her outside the house, told her to lay a lesso (sheet of cloth) on the ground and to lie on the cloth. He then cut off her panty, and proceeded to rape her for 5 to 10 minutes. The said lesso and torn panty were produced in the trial Court as exhibits.

Section 3(1) of the Sexual Offences Act provides the elements of the offence of rape as follows:

“A person commits the offence termed rape if-

a) He or she intentionally and unlawfully commits an act which causes penetration with his or genital organs;

b) The other person does not consent to the penetration; or

c) The consent is obtained by force or by means of threats or intimidation of any kind.”

The Court of Appeal in its decision in Republic vs Oyier (1985) KLR 353 elaborated on these elements as follows:-

1. The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.

2. To prove the mental element required in rape, the prosecution has to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.

3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.

It is thus my finding that the testimony by PW1 and PW2 as reproduced in the foregoing was sufficient evidence to prove the elements of rape, and the conviction of the 1st Appellant for the offence was proper.

I accordingly order as follows:

1. I partially allow the 1st Appellant’s appeal only to the extent of quashing the conviction entered against the said Appellant for Count IV of the offence of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. I also set aside of the death sentence imposed on the 1st Appellant for this conviction.

2. I allow the 2nd Appellant’s appeal in its entirety and quash the conviction entered against the 2nd Appellant for Count I of the offence of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. I also set aside of the death sentence imposed on the 2nd Appellant for this conviction.

3. I further order that the 2nd Appellant be and is hereby set at liberty forthwith unless otherwise lawfully held.

4. I uphold and affirm the conviction of the 1st Appellant for Count I of the charge for the offence of robbery with violence contrary to section 296(2) of the Penal Code, and confirm the sentence of death imposed upon the 1st Appellant for this conviction.

5. I uphold and affirm the conviction of the 1st Appellant for Count II of the charge for the offence of rape contrary to section 3(1) as read with sub section 3 of the Sexual Offences Act, Act No. 3 of 2006, and confirm the sentence of ten years imprisonment imposed upon the 1st Appellant for this conviction.

6. The sentences meted upon the 1st Appellant shall run concurrently from the date of the 1st Appellant’s conviction by the trial Court.

Orders accordingly

DATED AT MACHAKOS THIS 11TH DAY OF SEPTEMBER 2017.

P. NYAMWEYA

JUDGE