[2023] KEHC 19343 (KLR)

Loltere v Republic (Criminal Appeal E022 of 2021) [2023] KEHC 19343 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19343 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Appeal E022 of 2021

RB Ngetich, J

June 29, 2023

Between

Momwareng Loltere

Appellant

and

Republic

Respondent

(An appeal against the conviction and sentence from the Judgment and/or Decree of Honourable N.M Idagwa (SRM) delivered on the 28th of September, 2021 at Kabarnet Senior Principal Magistrate’s Court Criminal Case No. 748 of 2019)

Judgment

1. The appellant Momwareng Loltere was charged with 3 counts of robbery with violence with the offence of Robbery with violence contrary to Section 296 (2) of the Penal Code.

2. Particulars for count 1 were that on the 9th day of September, 2019, at about 8:30 a.m along Yatia Loyamoruk road, Chemuro sub-location in Tiaty East Sub- County, within Baringo county, the accused with others not before court while armed with AK 47 riffles robbed Rodgers Cherono cash Kshs 3450/= and a Sisco mobile phone valued at Kshs 6450/= and at the time of the said robbery wounded the said Rodgers Cherono.

3. Particulars of count II were that on the 9th day of September, 2019, at about 8:30 a.m along Yatia Loyamoruk road, Chemuro sub-location in Tiaty East Sub- County, within Baringo county, with other not before court while armed with AK 47 riffles robbed Douglas Chebii cash Kshs 2650/= and at the time of the said robbery wounded the said Douglas Chebii.

4. Particulars for count III the 9th day of September, 2019, at about 8:30 a.m along Yatia Loyamoruk road, Chemuro sub-location in Tiaty East Sub- County, within Baringo county, with other not before court while armed with AK 47 riffles robbed Gideon Chelimo cash Kshs 3500/= and a mobile phone make Nokia valued at Kshs3000/= all valued at Kshs 6500/= and at the time of the said robbery wounded the said Gideon Chelimo.

5. The Appellant denied all the charges and the case proceeded for full trial with the prosecution calling 8 witnesses in support of their case. The accused gave sworn statement in his defence and called one witness in support of his case. By the judgment delivered on 28th day of September, 2021, the lower Court found the prosecution had proved their case beyond reasonable doubt in all the three counts. The appellant was convicted and sentenced to serve 50 years imprisonment in each count which sentences were to run concurrently.

6. The Appellant being aggrieved and dissatisfied with the decision of the trial court, lodged an appeal through a petition of appeal on the following grounds: -a)That the trial court erred in law and fact by failing to hold that the charge sheet was fatally defective.b)That the trial court erred in law and fact by failing to observe that the witness evidence was inconsistent and uncorroborated.c)That the trial court erred in law and facts as it failed to hold that the evidence of identification and recognition was not conclusive.d)That the trial magistrate erred in law and in fact by shifting the burden of prove from the prosecution to the Appellant when the evidence failed to link him to the offence.

Appellant’s Submissions 7. The Appellant filed written submissions together with amended grounds of appeal as hereunder: -a)The learned trial magistrate erred in law and facts by not observing that the prosecution’s case was full of contradictory evidence.b)That the learned trial magistrate erred in law and in fact by not observing that the identification parade provisions were not complied with during the said parade.c)That the Learned trial magistrate erred in law and in fact by not observing that the medical evidence tendered at trial did not link the Appellant with the injuries sustained by the complainants.d)That there was no expert evidence to confirm if the said motor vehicle was shot using a gun or not.

8. The Appellant submits that it is trite law that the prosecution must proof its case beyond reasonable doubt as was established in the case of DPPvsWoolmington. He submits that Pw 1 told the court that he was robbed of a phone worth Kshs 2500/= during his evidence in chief but did not produce any document to prove that he owned the said phone and the evidence contradicted the particulars of the charge sheet that indicates that Pw 1 was robbed a phone worth Kshs 3,000/=.

9. The appellant proceeds to submit that PW1, PW2 and PW3 testified that they were ordered to remove their clothes and run and, in the circumstances, met with one Chepkok in a distance of 100 meters from the scene of crime but the said witnesses did not inform the court whether they found the clothes or not. That the prosecution failed to avail the said Chepkok as a prosecution witness who could be essential in the case hence violating the provisions of Section 46 and 50 of the CPC. The Appellant relies in the case of Bukenya v Uganda &another [1972] EA 549. “The Appellant submits that Pw 1 testified that they were ordered to look away from the robbers faces and questions how the witness could identify appellant under the circumstances. Further that Pw2 told the court in examination in chief that he was robbed Kshs2600 which contradicts the charge sheet which indicates that he was robbed Kshs 2650and the contradiction rendered the charge sheet defective. He proceeds to state that pw 1 told the court that the Appellant had a round thing in the ear at the scene and at the police station but it was not availed in court as exhibit.”

10. The Appellant proceeds to submit that Pw 2 told the court that there were 7 people including the Appellant in the parade which contradicted the evidence of Pw 8 who stated that there were 8 people in the identification parade including the Appellant.

11. He submits that Pw 3 told the court that he was robbed Kshs3500/= and a phone make Techno valued at Kshs2500/= hence contradicting the particulars of the charge sheet that he was robbed a phone make Nokia and that the evidence of having the phone was not supported by any document.

12. The Appellant submits that Pw 3 told the court that he did not go to the police after the accused was arrested and did not therefore participate in the identification of the Appellant. He further submits that Pw 4 did not witness the robbery hence his evidence does not hold water; that Pw 4 said he knew the Appellant who was his uncle but his evidence was disapproved by the evidence of Pw 6. He urges court to find that despite Pw 4 and Pw 6 claiming that they were together when the robbers bypassed them, their evidence did not corroborate.

13. The Appellant further submits that the clinical officer who treated the victims told the court that the injured had a history of being assaulted and not robbery and therefore the evidence of the clinical officer and evidence on the P3 form was of assault and not a robbery. Further that the doctor estimated the age of the injuries as 8 days which and cannot therefore be linked to incident of September 9, 2019.

14. The Appellant submits that there were no proper investigations conducted to ascertain whether complainants herein were attacked by the Appellants and if there were gunshots that led to the destruction of the motor cycle’s dashboard, the prosecution failed to provide ballistic expert’s report neither was bullet cartridge recovered from the scene of crime as a proof of gunshot during the said robbery.

Respondent’s Submisions 15. The Respondent submits that the Appellant was positively identified at the scene of crime by Pw 1 as the one who had a gun. That the accurate description of the appellant was narrated by the prosecution witnesses. That the incident occurred at 8:00 a.m in the morning in broad daylight, pw1 was in company of Pw 2 Douglas who also identified the Appellant.

16. On the issue of defence, the Respondent submits that the court found and held that the defence of alibi raised by the Appellant was an afterthought because it was belatedly raised long after the prosecution had exhausted its evidence. The defence of alibi was raised at defence stage and the prosecution therefore had no opportunity to make necessary inquiry into it. Further the court also held that the Appellants defence of alibi did not hold because the identification parade placed the Appellant at the scene of crime.

17. The Respondent submits that the documentary evidence on record was cogent enough to sustain a conviction against the Appellant; that there is an identification parade form on record produced by Pw 1 detailing the manner in which the parade was conducted and that the Appellant was positively identified. Photographs of the motorcycle the complainant and his two friends were using were also produced in court as exhibits.

18. The respondent submitted that the sum total of evidence adduced by the prosecution witnesses leaves no doubt in the mind of any ordinary thinking person that the appellant committed the offence he was charged with as the prosecution witnesses’ evidence was consistent, corroborative of each and above all unchallenged by the Appellant; that there was no material discrepancies in the prosecution case sufficient to water down the case and thus the prosecution proved its case against the Appellant beyond reasonable doubt.

Analysis and Determination 19. This being a first appeal the court is legally required to re-evaluate evidence adduced before trial court as per Section 354 (3) of the Criminal Procedure Code which requires the appellate court to reevaluate evidence adduced before the trial court and arrive at an independent determination while taking into account the fact that this court did not have the advantage of hearing and observing the demeanor of witnesses. For this reason, I give due allowance. This position was stated in the case of Okeno v Republic [1972] EA 32 where the court stated as follows:-“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). 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 findings and conclusions; it must make its own findings and draw its own 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, see Peters v Sunday Post [1958] EA 424. ”

20. I have considered the grounds of appeal, evidence on record and submissions filed by the parties herein. I consider the following as issues for determination: -a)Whether the Appellant was properly identified.b)Credibility of prosecution witnessesc)Whether the prosecution’s case was proved beyond reasonable doubt.

(i) Whether the Appellant was properly identified. 21. The law on identification in Kenya was stated in WamungavRepublic [1989] KLR 424, thus: -“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of mere identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.

22. In the instant case, PW1 testified that the incident occurred in broad daylight and he was able to see the appellant at the scene of crime who had a gun. This was confirmed when he was able to identify the appellant in identification parade conducted in respect to the appellant.

23. Pw 2 testified that the robbers had not covered their faces and it is the accused before court who took the money from him; the witness was able to describe the appearance of the Appellant before court and during the identification parade. Both pw1 and pw2 were able to pick the appellant from the parade conducted.

24. In the case of Kinyanjui & 2othersv Republic [1989] KLR 60, the court had this to state concerning identification parade: -“Is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion. It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.”

25. The appellant herein argued that the laid down procedure was not followed while conducting identification parade but Pw 7 explained to the court how the parade was conducted. In the parade the officer went further to line up two people with scars like the Appellant in the identification parade, a parade which the appellant expressed satisfaction and together with his friend Edwin affixed their thumb prints in agreement with the way the parade was conducted. The argument is therefore in my view, an afterthought.

(ii) Credibility of prosecution witnesses 26. In respect to the issue of contradictory evidence, the appellant stated that the particulars of the items stolen as listed in the charge sheet contradicted what the complainants told the court and PW1 and PW 2 contradicted themselves on the number of people lined up in the identification parade by Pw1 saying 7 while pw 2 said 8 people.

27. It is however trite that the court should weigh contradictory evidence against the entire evidence tendered as a whole it is not every contradiction that calls for an acquittal; it depends on the magnitude of the contradiction against delivery of substantive justice.

28. In the case of Leonard Kipkemoi v Republic[2018] eKLR the court quoted the case of Erick Onyango Ondeng’ v Republic [2014] e KLR where it was held stated that;“The primary duty of the trial court is to carefully analyze that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honored devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyze the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See Okeno v Republic [1972] EA 32).”

29. Similarly, in S C N v Republic (supra) quoted in the case of Jackson Mwanzia Musembi v Republic [2017] eKLRthe court relied on the case of Uganda Court of Appeal in Twehangane Alfred v Uganda- Criminal Appeal No 139 of 2001, [2003] UGCA, 6, where the court noted that it is not every contradiction that warrants rejection of evidence. It was held as follows:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

30. In Peter Ngure Mwangi v Republic[supra] the Court of Appeal, when dealing with the question of alleged inconsistencies in evidence, stated as follows;“We, therefore find that on the totality of the evidence before us, any difference there may have been in the evidence adduced by the prosecution consisted of minor discrepancies and inconsistencies. We find that these were not material and did not weaken the probative value of the evidence tendered by the prosecution in support of their case.”

31. I have weighed the inconsistencies mentioned by the appellant against evidence adduced as a whole and in my view, there is no serious inconsistencies or contradictions to shake evidence adduced by the prosecution witnesses against the appellant. Evidence adduced clearly show that the complainants were robbed and the appellant was positively identified by pw1 and pw2 as the person who was armed with a gun and who robbed the appellant. There is therefore no material contradictions in evidence adduced by the prosecution witnesses.

(iii) Whether the prosecution’s case was proved beyond reasonable doubt. 32. The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of Oluoch v Republic [1985] KLR where it was held:“Robbery with violence is committed in any of the following circumstances:The offender is armed with any dangerous and offensive weapon or instrument; orThe offender is in company with one or more person or persons; orAt or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………”The use of the word or in this definition means that proof of any one of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code.

33. In this case the complainants said that they were accosted by a group of men – this fulfils ingredient (b). The complainants testified that the accused and his companions were armed with guns which were used to threaten the complainants – this fulfils ingredient (a). The complainants at the time of the said robbery were injured and they were treated in hospital, a doctor testified in court and produced medical documents-this fulfils ingredient (c). All the ingredients of Robbery with Violence under section 296(2) have been shown to have existed and that is sufficient to prove the offence. The prosecution’s case was proved beyond reasonable doubt in this case. I therefore find that the trial magistrate was correct in convicting the appellant under section 296(2).

34. Record show that the trial magistrate gave due consideration to the appellant’s defence which he found to be unworthy and subsequently dismissed. I am satisfied that the appellant was properly convicted and I do hereby dismiss his appeal against conviction.

35. Final orders: -The appeal is hereby dismissed.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 29TH DAY OF JUNE 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi - Court Assistant.Ms. Ratemo for state.Appellant present.