[2017] KEHC 1889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HCCRA NO. 54 OF 2015.

LTANKIYAN LEMARLENI………………………. APPLICANT

VERSUS

REPUBLIC …………………………………….RESPONDENT

(From the original conviction and sentence in criminal case No.16 of 2013 in the Chief Magistrate’s court At Isiolo)

J U D G M E N T

The appellant was charged with six counts of the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. He was also charged with the offence of being in possession of firearm and ammunition. The particulars of the offence for each count were:

COUNT ONE:

LTANKIYAN LEMARLENI AND TWO OTHERS NOT BEFORE COURT: On the 26th day of April, 2013 at Learata area in Samburu County, while armed with dangerous weapon namely a fire-arm M-16 Serial Number SER 003920, with two others not before the court robbed SAMSON NCHEBERE Kshs.3,000/- and his mobile phone make Nokia 1600/- valued at Kshs.5,000/- and at or immediately before or immediately after the time of such robbery used actual violence to the said SAMSON NCHEBERE.

COUNT II

CHARGE: POSSESSION OF FIREAM CONTRARY TO SECTION 4 (2) (G) AS READ WITH SUB-SECTION (3)(2)(a) OF THE FIREARM ACT, CAP.114 LAWS OF KENYA

PARTICULARS OF THE OFFENCE. LTANKIYAN LEMARLEN: on the 26th day of April, 2013 at Learata area in Samburu County, unlawfully without reasonable excuse had in his possession or under his control a firearm namely M-16 S/No.SER 003920 in circumstances which raised reasonable presumption that the said firearm had recently been used in a manner prejudicial to public order.

COUNT III

CHARGE: POSSESSION OF AMMUNITION CONTRARY TO SECTION 4(2)(a) AS READ WITH SUB-SECTION(3)(2)(a) OF THE FIREARM ACT, CAP 114 LAWS OF KENYA

PARTICULARS OF THE OFFENCE: LTANKIYAN LEMARLEN: On the 26th day of April, 2013 at Learata area in Samburu County without reasonable excuse had in his possession or under his control sixteen rounds of ammunition of 5. 56mm in circumstances which raised reasonable presumption that the said ammunitions had recently been used in a manner prejudicial to public order.

COUNT IV

CHARGE: ROBBERY CONTRARY TO SECTION 295 AS READ WITH SECTION 296(2) OF THE PENAL CODE.

PARTICULARS OF THE OFFENCE.

LTANKIYAN LEMARLENI AND ANOTHER NOT BEFORE COURT: on the 27th day of March, 2013 at Learata area within Samburu County, while armed with dangerous weapon namely a firearm make M-16 Serial Number SER 003920, jointly with another not before court robbed Jonah K. Chemweno of his mobile phone make Nokia valued at Kshs.6,000/- a brief case with assorted personal clothes all valued at Kshs.6,000/- and cash kshs.2,500/- and at or immediately before or immediately after the time of such robbery used actual violence to the said Jonah K. Chemweno.

COUNT V

CHARGE: ROBBERY CONTRARY TO SECTION 295 AS READ WITH SECTION 296(2) OF THE PENAL CODE.

PARTICULARS OF THE OFFENCE

LTANKIYAN LEMARLENI AND ANOTHER NOT BEFORE COURT: On the 27th day of Marcy, 2013 at Learata area within Samburu County, while armed with dangerous weapons namely a firearm make M-16 Serial Number SER 003920, jointly with another not before court robbed CHRISTINE KAIMURI of her academic certificates, a handbag containing assorted personal clothes all valued at Kshs.6,000/- and cash Kshs.3,800/- and at or immediately before or immediately after the time of such robbery used actual violence to the said Christine Kaimuri.

COUNT VI

CHARGE: ROBBERY CONTRARY TO SECTION 295 AS READ WITH SECTION 296(2) OF THE PENAL CODE.

LTANKIYAN LEMARLENI AND ANOTHER NOT BEFORE COURT On the 27th day of March, 2013 at Learata area within Samburu County, while armed with dangerous weapon namely a firearm make M-16 Serial number SER 093920, jointly with another not before court robbed Patrick Mwangi of his mobile phone make XYTEL 660 valued at Kshs.4,800/-, one roll of clothing lining valued at Kshs.1,500/- and one roll of cloth material valued at Kshs.950/- and at or immediately before or immediately after the time of such robbery used actual violence to the said PATRICK MWANGI.

The trial court convicted the appellant on all the counts and sentenced him to suffer death. The grounds of appeal are that:-

1. The appellant pleaded not guilty.

2. The identification/recognition of the appellant by prosecution witnesses was not free from possible errors.

3. The prosecution evidence had irregularities, inconsistencies, contradiction and discrepancies.

4. The exhibit that was produced was not found in possession of the appellant.

5. The prosecution did not prove its case beyond reasonable doubt.

The appellant submit that the incident allegedly occurred during the day. However, the witness contradicted themselves. There is contradiction as to the type of weapon used to hit the appellant. Some referred to it as a rungu while others said it was a walking stick.

Further, it is alleged that after being hit, the appellant fell down and was disarmed. Other witnesses testified that the appellant ran away. The appellant also contends that the name appearing on the charge sheet is not his. His proper name is LTANKYAA LENARANTILE (ID NO.27308120). The appellant also contends that although several witnesses testified that they were robbed of several items, those properties were not proved in court. The appellant was not found in possession of those properties. The appellant was arrested in relation to an offence of grazing his cows inside a park as per his defence. That is why the first charge sheet gave the date of 27/3/2013 and was drafted at Wamba Police Station. Further, it is submitted that the trial court failed to consider the appellant’s defence.

Mr. Odhiambo opposed the appeal. Counsel submitted that the event occurred around 1. 30 p.m in day broad light. The appellant was hit by PW2 and was disarmed by the people he wanted to rob. A gun was produced as an exhibit. A ballistic report confirmed that it was a gun. The names on the charge sheet tallies with those in the identity card. The ingredients of robbery with violence were proved. The appellant was disarmed at the scene.

This is a first appeal and the court has to evaluate the evidence afresh and make its own conclusion. PW1 LAWRENCE NTHIWA is a firearm examiner based at the firearm Laboratory Headquarters. He produced a report on a firearm prepared by his colleague, Alex Mwandawiro. The firearm was taken to the laboratory by PC Wilfred Munyoki together with 16 rounds ammunition. It was a riffle with serial number 003920 that had been combined with another rifle serial number 00958. It is his evidence that the rifle was capable of firing. Four rounds of ammunition were tested on the rifle.

PW2 KIPAYO LESIN is a herdsman from Archers Post. On 26/4/2013 he was travelling in a Matatu from Archers Post to Wamba at about 1. 30 pm. When they reached a place called Loreto they were stopped by three morans. One of the Moran was armed with a gun. The appellant was the one with a gun. It is his evidence that the appellant started beating them asking for money. There were police officers in the vehicle. PW2 had a rungu. While the appellant was collecting money from the passengers. PW2 hit him with a rungu(club) behind the left ear and the appellant fell down. The Police Officers in the vehicle took the firearm. PW2 testified that the appellant had a scar on the spot where he hit him with the rungu.

PW3 PC FRANCIS KIBAKI LEPORUMAREI is a Security Officer. He was proceeding on annual leave on 26/4/2013. While travelling in motor vehicle number KBE 374Y from Isiolo to Wamba, they were stopped by three people at Loreto. One had an M16 Rifle while the other two had spears and rungus. The three people were wearing military combat uniforms with green scarfs around their faces. The one with rifle demanded money from the passengers and switched off the vehicle. The passengers gave out money and had managed to collect Kshs.1,200/-. PW2 had a rungu and went behind the person with the gun. It is PW3’s evidence that PW2 hit the armed robbers with a rungu at the back of the head. The other two robbers escaped. PW3 recovered the firearm and started following the other robbers. The appellant tried to run away but they arrested him and took him to Wamba Police Station. The firearm was loaded with 16 rounds of ammunition.

PW4 NIXON LIKALOPI comes from Wamba. On 26/4/2013 at about 2. 00 p.m he was travelling in a Nissan Matatu registration number KBE 374Y heading to Wamba. When they reached LEERATA they were stopped by robbers. One of the robbers had a gun. There were three robbers. They were ordered to leave the vehicle. The one with a gun started beating them. As they were alighting he took the passenger’s bags and phones. They pleaded with the armed robber not to beat them and promised to give him money. As the robber was collecting the money PW2 hit him with a walking stick on the head from behind and he was disarmed. The other robbers ran away. The appellant was taken to Wamba Police Station. The robbers were wearing jungle uniform.

PW5 ANTONY LOKOITIP is a Medical Doctor. He was stationed at the Wamba Health Centre. He produced a P3 form filled by his colleague Dr. Fred Ndoki who was away on further studies. The P3 form was for Mike Lesir (PW7) who was assaulted by highway robbers. He had injuries on the left and right hand, bruises on the left wrist and swollen upper part of the left foot.

PW6 SAMSON NGORUA NJEBERE is a matatu driver. On 26/4/2013 he was from Isiolo heading to Wamba. They were stopped by armed robbers at about 1. 30pm. One of the robbers pointed a firearm towards the vehicle. He stopped. The robbers searched the passengers. They then took his mobile phone and Kshs.3,000. They also took the motor vehicle keys. Some passengers asked the robbers to return the bags and vehicle keys. One passenger hit the armed robber at the back of the head and he fell. The robber was disarmed and the other robbers ran away. Those who disappeared had no firearms. It is his evidence that it was the appellant who was armed and he was wearing jungle uniform and a lesso. He was hit with a walking stick.

PW7 MIKO LESIR is a Ranger at the Samburu National Reserve. On 26/4/2013 at about 1. 00p.m he was in a matatu from Archers Post heading to Wamba. While on the way three people emerged. One was armed. The robbers started beating them as they were alighting. It was the appellant who was armed and was hitting them. PW7 was hit on the ear and started bleeding. The appellant took the vehicle ignition keys. PW7 had Kshs.2,800/- and showed it to the appellant. The appellant was hit from behind as he was getting the money by PW2 and was disarmed. The gun in possession of the appellant was an M16 Rifle. They took the appellant to Wamba Police Station. The appellant was wearing a British Army jungle uniform.

PW8 INSPECTOR SAIDI HIRIBAA was stationed at the Wamba Police Station. On 26/4/2013 at about 2. 30p.m a Nissan Matatu vehicle driven by SAMSON NCHEBERE(PW6) drove to the station with passengers. The passengers told him they had arrested a suspect. PW8 investigated the case. He re-arrested the appellant who was injured and bleeding. He directed Police Officers to take the appellant to hospital. PW8 took the firearm and ammunition to the Ballistic Experts Officers in Nairobi for examination through an exhibit memo. The firearm was found to be in good mechanical condition. He caused the appellant to be charged with the offence.

In his unsworn defence, the appellant testified that on 27/3/2013 he went to graze cattle near Kalama Park. He was inside the park. He was arrested by six scouts. They asked him for kshs.2000/- so that they could let him go. He was grazing with two other people. His colleagues paid the money and were released. He was taken to Wamba Police Station. The Police Officers asked for his identity card. He was then charged in court.

DW2 LOAS LONGIMA testified that on 27/3/2013 he was grazing cattle at Kalama Park. At about 10. 00 a.m they were arrested by some rangers. Their cattle were taken. They were asked to pay Kshs.2000. Two families were able to pay the money. The appellant had no money and was arrested and taken to Wamba.

The issue for determination is whether the prosecution proved its case beyond reasonable doubt. The record shows that the charge sheet was amended four times. On 06/05/2013, the prosecution informed the courtthat they had established that the names on the charge sheet were not those of the appellant. The prosecution applied to amend the charge sheet. The appellant had no objection. The charges were read over again on that day 06/05/2013. On 28/5/2013, the prosecution applied to have the charge sheet amended. The charges were read over again. These were eight counts which are the same number of counts as in the first amended charge sheet.

By then no witness had testified. There were six witnesses but the appellant told the court that he was not ready to proceed as he was sick.

On 26/6/2013 the prosecution applied to amend the particulars of the charges. Once again the charges were read over to the accused. No witness had testified. On 14/11/2014 the prosecution applied to amend the charge sheet. The reason was that there were some witnesses whose complainants were not captured in the charge sheet. The amended charge sheet was read over to the appellant on 05/12/2014. The charges were reduced to six instead of the original eight counts. By then five witnesses had testified. There were three counts of robbery with violence, one count of attempted robbery with violence and the two other counts in relation to the firearm and ammunition. The charges involved some complainants who had not testified were dropped. These are Patrick Mwangi and Christine Kaimuri.

Although the trial court did not ask the appellant as to whether he wanted to have the witnesses who had testified to be recalled for cross-examination, I do find that there was no prejudice to the appellant. The several amendments did not alter the basis of the case. The last amendments left out other charges and reduced the counts by two. The appellant had fully participated with the hearing and had cross-examined the first five witnesses. I do find that the trial was fairly conducted.

The appellant has raised the issue of his identity and date of arrest. The last charge sheet gives the name of LTANKINYAN LEMARTEN. The name LENRANTILE is not indicated in the charge sheet. There is only a difference of LENARANTILE.The charge sheet reads LEMARLEN. The appellant also stated that he was arrested on 27/3/2013. There is a charge sheet which captured some counts as having been committed on 27th March, 2013 while others were committed on 26/4/2013. The last charge sheet gives the correct date as 26/3/2013. All the charge sheets give the date of arrest as 26/3/2013. Since the last amended charge sheet gives the proper dates and the evidence indicates that the incident occurred on 26/3/2013, I do find that there is no issue with the date of arrest as well as the incident. The appellant was arrested on 26/3/2013 which is the same date of the incident.

The prosecution case is to the effect that the appellant was arrested by members of public at the scene. He was in the company of two other people who ran away after the appellant was hit. The three counts of robbery with violence relate to SAMSON NCHEBERE(PW6) LALKAILEPI NIXON (PW4) and FRANCIS KIBAKI(PW3). The charge for attempted robbery with violence relate to MIKE LESIR (PW7). The defence evidence is to the effect that the appellant was arrested for grazing inside a park. DW2 during cross-examination indicated that he was arrested on 05/06/2013. The appellant informed the court that his witness was in remand prison. A production order was issued. The evidence show that the appellant was arrested alone on 26/3/2017. The investigating officer received the appellant at Wamba Police Station having been arrested by members of the public who were travelling in a Nissan matatu. The defence evidence does not raise any doubt on the prosecution case.

The incident occurred during the day. It is the evidence of PW2 that he hit the appellant on the back of his head near the ear. The appellant fell and was disarmed. PW2 could see the scar on the appellant’s head as he was testifying. PW1 is a security officer. He was present when the incident took place. PW7 is also a Forest Ranger who is knowledgeable about firearms having worked for 14 years. They both testified that they arrested the appellant at the scene.

The charge sheet refers to the offence of robbery contrary to Section 295 as read with Section 296(2) of the Penal Code. That way an accused may not know that he/she is facing a charge of robbery with violence. However, the particulars clearly state that the appellant used violence. The particulars indicate that the appellant was armed with a rifle. The rifle was produced in court. There is evidence that the appellant was in the company of two other robbers. It is clear that the complainant’s items were robbed and then the appellant was disabled. The robbery incident took place. The fact that nothing was recovered from the appellant does not disprove the prosecution evidence. It is clear that the appellant was armed. He assaulted the passengers and took their properties. He was hit by one of the victims and arrested. He was in possession of rifle which had 16 rounds of ammunition. The prosecution evidence is direct and proves all the ingredients of robbery with violence. I do find that the prosecution proved its case beyond reasonable doubt.

On the issue of the appellant’s name, the evidence shows that the appellant was arrested at the scene. It is the same person who was charged in court. The sequence of events show that there was no mix-up in the person arrested by the passenger and the one charged in court. The witnesses pointed out the appellant as the person they arrested. I do find that it is the appellant who committed the offence. There is no contradiction or irregularities on the prosecution evidence. All the separate counts were proved.

In the end, I do find that the appeal herein lacks merit and is hereby disallowed.

DATED AND SIGNED AT EMBU THIS …….….DAY OF SEPTEMBER, 2017.

S. J. CHITEMBWE

JUDGE

A. DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF NOVEMBER 2017.

B . MABEYA

JUDGE