[2011] KEHC 3832 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

[CORAM: KOOME AND AZANGALALA JJ]

CRIMINAL APPEAL NO. 31 OF 2007

BETWEEN

LOKWAR LOYARAN......................................................................................APPELLANT

AND

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

(An appeal from the Judgment of the Senior Resident Magistrate [G.M.A. Ongondo] (SRM) -

dated 31/05/2007in Lodwar SRMC CRC. No. 339 of 2005]

JUDGMENT

The appellant, Lokwar Loyaran,was charged with three (3) counts of Robbery with Violence Contrary to section 296 (2) of the Penal Code (Cap 63 Laws of Kenya). It was alleged in count 1, that the appellant herein jointly with others not before the court, while armed with a dangerous weapon namely, an AK 47 rifle, on 27th March, 2005, at Lokore Reserve in Turkana District within the Rift Valley province, robbed Kaikeny Kachuna of Kshs 350/= the property of the said Kaikeny Kachuna.

In the second count, it was alleged that, on the date and at the place aforementioned, the appellant jointly with others not before the court, while armed with a dangerous weapon namely, an AK 47 rifle robbed Ereng Kapusof Kshs 150/=, the property of the said Ereng Kapus.

In the third count, it was alleged that on the date and at the place aforementioned, the appellant in consort with others not before the court, while armed with the same weapon, robbed Jasmin Wasikeof Kshs 100/= and immediately after the time of such robbery, wounded the said Jasmin Wasike.

The State’s case was that, Kaikeny Kachuna (P.W.1) and Ereng Kapus,(P.W.2) (the complainants in counts 1 and 2 respectively), were on the material date traveling in a Lorry which was being driven by Jasmin Wasike, (the complainant in count 3), along Kakuma/Lodwar road when, at about 8. 00 a.m., at Kadakungimoe area, they came across an armed thug who shot at the lorry on the windscreen. The driver lost control and the lorry hit a tree on the side. The thug ran to the driver’s side and shot the driver. Keikeny Kachuna jumbed from the lorry and hid under it. The thug ordered him to lie down and when he defied the orders, he was struck with a stone. The thug then ordered those on the lorry to produce money. Kshs 350/= was collected and given to P.W.1 who dropped the same on the ground for the thug to pick.

P.W.1 recognized the thug as the appellant whom he stated he had known since childhood. When three motor vehicles appeared on the scene, the thug disappeared into a nearby thicket.

The driver was injured seriously and drove the lorry back to Kakuma in that condition. At Kakuma, he was taken to the Mission Hospital where he died the next day. P.W.1 was also treated at the same hospital and was discharged.

Dr. Joseph Karimi Kinyua(P.W.7) testified that he had worked with Dr. Stephen Ekitelaat Lodwar District Hospital and was conversant with his handwriting and signature. The latter was away for further studies and could not be availed to testify without unreasonable delay and experience. Dr. Joseph Karimi Kinyua therefore produced the post mortem report on the body of the deceased driver. The report indicated that the driver had bullet wounds on the left thigh and abdomen and had died of cardiorespiratory arrest due to internal perforation and hemorrhage due to gunshot wounds.

Ereng Kapus(P.W.2) gave evidence reaffirming that of P.W.1 and identified the appellant as one of the thugs who attacked them with an AK 47 rifle on the material date. He lost kshs 150/=.

P.C. Josphat Kimutai(P.W.5), was at the material time stationed at Kakuma Police Station. At about 9. 45 a.m., on the material date, he received a report of the robbery and visited the Locus in quo accompanied with other police officers. They recovered two spent cartridges. P.W.5 prepared an exhibit memo and sent the recovered A.K. 47 and the two spent cartridges to a ballistics expert for examination. He subsequently received the same items together with a ballistics report and produced them at the trial.

Peter Ekaraito(P.W.3) was at the material time a Kenya Police reservist in the area. He was initially arrested on suspicion of concealing criminals but was released after two days. Upon release, he commenced investigations into the robbery against P.W.1 and P.w.2 which investigations led him and other police reservists to the home of the appellant who according to P.W.3 admitted committing the crime blaming it on the devil. They arrested the appellant and took him to Kakuma Police Station where he was re-arrested.At the Police Station, P.W.1, according to P.W.3, identified the appellant. P.C. Stanley Rono, P.W.4 is the police officer who re-arrested the appellant at Kakuma Police Station.

Esekon Amudoi (P.W.6), another police reservist gave evidence re-affirming that of P.W.3. He further stated that investigations indicated that the appellant had allegedly used an AK 47 which belonged to one Ngapeto. They recovered the AK 47 and took it to Kakuma Police Station.

The appellant gave an unsworn statement and called no witnesses. He denied committing the offence contending that on the material date at the material time, he was not at the scene of crime but was herding his animals in Latea area far away from Lokore area when the robbery happened. He denied he was called Lokwar Loyaran and gave his name as Puskol Abung. He also stated that he did not know P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6.

The learned trial Magistrate considered all evidence and expressed his belief in the veracity of the accounts given by P.W.1 and P.w.2 who were eye-witnesses. He concluded that the prosecution had proved the charge against the appellant beyond reasonable doubt. He therefore convicted the appellant and after considering his mitigation sentenced him to death on the 1st count. The sentences on the other two counts were held in obeyance.

The appellant was not satisfied and has appealed before us on some 12 grounds of appeal. The issues raised in those grounds are: Unsatisfactory identification; failure to call essential witnesses; discrepancies in the prosecution evidence; reliance upon witnesses who had previously been arrested for the same offence and on evidence which was contradictory.

During the hearing of the appeal, the appellant appeared in person and relied upon his written submissions which had been filed earlier. On the other hand, Mr. Onderi appeared for the Republic and orally contested the appeal contending, in the main, that the appellant was convicted on sound evidence which testimony comprised evidence of two eye-witnesses in circumstances which favoured positive identification.

As the first appellate court, it is our duty to re-examine and re-evaluate the evidence upon which the appellant was convicted and reach our own independent conclusion bearing in mind that we neither saw nor heard the witnesses testify and should give allowance for that (See Okeno –vrs- Republic [1972] EA 32.

The summary of the evidence given above leaves no doubt that the appellant’s conviction turned on the evidence of P.W.1 and P.W.2. The robbery was staged in the morning at about 8. 00 a.m. It was therefore in a broad daylight. Identification would in the circumstance present no difficulty. But was the appellant’s identification free from the possibility of error? A scrutiny of the evidence of P.W.1 discloses that although he testified that he had known the appellant from childhood, he did not give his name in his first report. P.W.1 alleged in his testimony that he even knew the father of the appellant, yet he did not lead police officers and police reservists to his home to effect immediate arrest of the appellant. Instead, it was Peter Ekaraito(P.W.3) and Esekon Amodoi(P.W.6), police reservists, whose efforts led to the arrest of the appellant. It is significant that P.W.3 and P.W.6 were initially arrested and locked up in police cells for two days on the grounds that they hid criminals. It was after that incarceration that the two set out to investigate the robbery culminating in the arrest of the appellant. And they arrested the appellant because his father and members of the public implicated him and not because P.W.1 recognized him. Indeed, it is after the appellant had been arrested by P.W.3 and P.W. 6 that P.W.1 was invited to identify him.

P.C. Japheth Kimutai(P.W.5) also seemed to suggest in his testimony that the victims of the robbery informed him that they knew the thugs and could identify them. It is significant that he did not expressly state that P.W.1 knew the thugs by name. We doubt that he did so because nothing would have been simpler than P.W.1 leading P.W.5 to the appellant’s home immediately since he alleged to have known the appellant since childhood. Instead, the appellant was arrested by police reservists who were themselves not victims of the robbery.

There are other aspects of the testimony of P.W.1 which have caused us concern. At the trial, he alleged that when they were attacked, he was with P.W.2 in the driver’s cabin, a position which was not supported by P.W.2. The latter was categorical that at the time of the attack, he (P.W.2) was in the rear of the lorry and not in the driver’s cabin.

P.W.1 further testified regarding the arrest of the appellant as follows:-

“The area chief mobilized people. Accused was sought and he lead to the recovery of MFI 1 where he had hidden it …”

That testimony was not in consonance with that of P.W.3 and P.W.6. In our view, P.W.1 appears given to exaggerating. In the premises, unlike the learned trial Magistrate, we are not satisfied with the veracity of the account given by P.W.1.

With regard to the evidence of P.W.2, he did acknowledge that he had not previously known the appellant. He was therefore meeting him for the first time during the attack. He did not state how long he trained his eyes on the assailants. It does not escape our minds that he was under threat at the time. One of the assailants was infact armed with an AK 47 rifle. It is quite possible that he could have in the circumstances been wrong about the true identity of his assailants. We find it surprising that the prosecution did not consider it fit to mount an identification parade. If one had been mounted, and P.W.2 managed to identify the appellant, more weight would have probably been placed on the evidence of identification. In the absence of identification parade evidence, the evidence of P.W.2 on identification remains dock identification which calls for extreme care and caution before confirming a conviction on its basis. In Fredrick Ajode –vrs Republic [Cr. Appeal No. 87 of 2004] (UR) the Court of Appeal had the following to say on dock identification:-

“it is trite law that dock identification is generally worthless and a court should not place much reliance on it unless it has been preceded by a properly conducted identification parade. It is also trite that before such a parade is conducted and for it to be properly conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.”

Besides the above, we cannot understand why the prosecution treated the evidence of recovery of the fire arm allegedly used in the attack, in a casual manner. P.W.2, P.W.3 and P.W.6 all testified that the AK 47 rifle belonged to one Ngapeto.

In P.W.2’s own words:-

“MFI 1 belonged to Ngapeto and I learnt so after the attack.”

In P.W.3’s own words:-

“When we arrested the accused, he had no rifle. Later, Ngepeto was arrested as a suspect too, father to accused named him a suspect. We recovered an AK 47 rifle from Ngapeto whom we escorted to Kakuma police Station.”

And in P.W.6’s own words:-

“we found accused with his family members. It was reported that accused had used rifle of mzee Ngapeto who was traced and the rifle an AK 47 recovered. We found Ngapeto with this AK 47 rifle …”

So, why was Ngapeto not called as a witness? Why was the father of the accused also not called as a witness? In our view, those were essential witnesses who, if called, could have buttressed the case presented by the prosecution at the trial. But as they were not called, we have no alternative but draw an adverse inference that their evidence would probably have been adverse to the prosecution case. In Bukenya –vrs Uganda [1972] E.A 549, the Court of Appeal stated as follows at page 551 :-

“while the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”

We have said enough to show that the appellant’s conviction cannot safely be allowed to stand. We accordingly allow the appeal, quash the appellant’s conviction for robbery with violence and set aside the death sentence imposed upon him. The appellant is accordingly set at liberty forthwith unless he is otherwise lawfully held.

DATED AND DELIVERED AT KITALE THIS 4TH DAY OF MARCH 2011.

M. KOOME

JUDGE

F. AZANGALALA

JUDGE

Read in the presence of:

M. KOOME

JUDGE