[2017] KEHC 1320 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL APPEAL NO 48 OF 2016

MAGHANGA MWAZO MWANJEWE…….. APPELLANT

VERSUS

REPUBLIC………………………………… RESPONDENT

(From original conviction and sentence in Criminal Case Number 672 of 2015 in the Senior Principal Magistrate’s Court at Voi delivered by Hon E. G. Nderitu (SPM) on 7th September 2016)

JUDGMENT

1. The Appellant herein, Maghanga Mwazo Mwanjewe and Mwakazi Salim Mwikamba (hereinafter referred to as “his Co-Accused”), were jointly charged with two (2) Counts of robbery with violence contrary to Section 296 (2) of the Penal Code Cap 63 (Laws of Kenya).

2. The particulars of Count I were that on 4th August 2015 at Kabanga Village within Taita Taveta County, the Appellant herein and his Co-Accused, jointly with others not before court, being armed with a dangerous or offensive weapon namely an AK 47 robbed Silas Muriuki Termaline gemstone of unknown value.

3. The particulars of Count II were that on the aforesaid date, time and place, the Appellant and his Co-Accused, jointly with others not before court, being armed with a dangerous or offensive weapon namely an AK 47 robbed Joseph Katula (hereinafter referred to as “PW 4”) of Motor Vehicle Registration Number KBY 302T Nissan pickup (hereinafter referred to as “the subject Motor Vehicle”) valued at Kshs 965,000/=.

4. The Learned Trial Magistrate,Hon E.G. Nderitu convicted the Appellant on both Count I and Count II and sentenced him to suffer death as prescribed by the law. She, however, acquitted his Co-Accused on both Counts under Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya) as she found that the Prosecution had failed to prove its case against him.

5. Being dissatisfied with the said judgement, the Appellant herein lodged his Petition of Appeal on 19th September 2016. On 11th April 2017, he filed a Notice of Motion application seeking orders to be furnished with the First Report. In opposition to the said application, on 4th May 2017, the State filed a Replying Affidavit that was sworn on even date by its Prosecution counsel, Maureen Anyumba. The court gave directions on the filing of written submissions in respect of the said application.

6. However, on 15th June 2017, the Appellant withdrew his said application and requested to be granted leave to file his Written Submissions in respect of the main Appeal. He filed Amended Grounds of Appeal and his Written Submissionson 27th June 2017. The State’s Written Submissions were dated 11th October 2017 and filed on 12th October 2017. Despite being given an opportunity to respond to the State’s Written Submissions, he informed this court that he would rely on the Written Submissions that he had already filed.

LEGAL ANALYSIS

7. This being the first appellate court, this court is under a duty to re-examine the evidence that was adduced in the lower court as was held by the Court of Appeal in the case of Odhiambo vs Republic Cr. App No. 280 of 2004 (2005) 1 KLR where it was stated that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”

8. The Appellant relied onsix (6) Grounds of Appeal.It was evident from the said Grounds of Appeal, his Written Submissions and those of the State that the issues that had been placed before this court for determination were as follows:-

a. Whether or not the Charge Sheet was incurably defective; and

b. Whether or not the Prosecution had proved its case beyond reasonable doubt.

9. This court therefore dealt with the said issues under the different heads shown hereunder.

I. CHARGE SHEET

10. Amended Ground of Appeal No (5) was dealt with under this head.

11. The Appellant argued that the time the offence was alleged to have been committed was not indicated in the Charge Sheet as mandated under Section 137(f) of the Criminal Procedure Code Cap 75 (Laws of Kenya) and that it did not support the evidence of Johnson Githii Karanja (hereinafter referred to as “PW 1”)or that of Cyrus Muriuki Karithi (hereinafter referred to as “PW 8”).

12. His contention was that whereas PW 8 stated that on the material date, it was Termaline that was stolen, PW 1 testified that it was green garnet that was stolen. He questioned who between PW 1 and PW 2 was speaking the truth and therefore submitted that it was not safe to rely on the Charges as drafted to convict him.

13. He placed reliance on the case of HCCR No 192 and 193 of 2003 Ngome Patrick and Ngome Nyare at Mombasa CA (UNR) (sic) in which he stated it was held as follows:-

“We wish to point out that in charging a person under Section 296(2) of PC the prosecution must be extremely careful as the consequences are serious care must be taken when drafting of charge as it is the life of an individual that is at stake”(sic).

14. On its part, the State submitted that Section 134 of the Criminal Procedure Code provides as follows:-

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

15. It submitted that there was no confusion in the Charge Sheet because what was had been stolen had been clearly indicated therein. It added that failure to indicate the time when the offence occurred did not prejudice the Appellant as it was curable under the provisions of Section 382 of the Criminal Procedure Code.

16. In this regard, it relied on the case of Joseph Maina Mwangi vs Republic Criminal Appeal No 73 of 1993where the Court of Appeal held as follows:-

“In any trial, there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of the Criminal Procedure Code vis whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences.”

17. A perusal of the Charge Sheet showed that the Appellant and his Co-Accused had been charged with robbing Silas Kariuki of Termaline gemstone. It is not clear whether the said person was one and the same person as PW 8. Suffice it to state that the Learned Trial Magistrate determined that the person who was robbed was PW 8.

18. Johnson Githii Karanja (hereinafter referred to as “PW 1”) stated that he was the owner of the mine at Kabangaand PW 8 was his Manager. PW 1 stated that they mined green garnet and termaline and that they had stones containing green garnet in the store. He did not specifically state which gemstone was stolen. He merely stated that the gemstone that was stolen was valued at about Kshs 50,000,000/=. On the other hand, PW 8 stated that it was Termaline gemstone that was stolen on the material night.

19. The Appellant’s assertions that PW 1’s and PW 8’s evidence did not support Count I was therefore misleading and fell by the way side. While indication of the time the said offence occurred would have made the Charge more specific, failure to include the same did not render the Charge Sheet defective. Wilson Kilagura Mwatati (hereinafter referred to as “PW 2 and Jonathan Mbindyo (hereinafter referred to as “PW 6”) talked of having travelled until night time reached. The Appellant did not contest that fact during the trial.

20. As the Appellant, PW 2 and PW 6 were all agreed that the alleged incident was said to have occurred in the night, it was the view of this court that failure to indicate the time of commission of the offences herein did not go to the root of the Charge and did not therefore prejudice the Appellant. If it did, then he did not demonstrate how failure to indicate the time in the Charge Sheet prejudiced him.

21. The Charge Sheet contained all the information relating to the charge of robbery with violence contrary to Section 296(2) of the Penal Code and thus complied with the provisions of Section 134 of the Criminal Procedure Code cited hereinabove. It was not defective as had been contended by the Appellant or at all.In any event, such omission could be cured under Section 382 of the Criminal Procedure Code.

22. In the circumstances foregoing, Amended Ground of Appeal No (5) was not merited and the same is hereby dismissed.

II. PROOF OF THE PROSECUTION’S CASE

A. FIRST REPORT

23. Amended Ground of Appeal No (2) was dealt with under this head.

24. The Appellant submitted that the First Report was essential as it contained the truth of the matter and that it would have shown who led the alleged attack and how the police ended up going to his house to arrest him four (4) days later. He added PW 2, Joseph Katula (hereinafter referred to as “PW 4”) and Jonathan Mbindyo (hereinafter referred to as “PW 6”) never testified of having led the police to arrest him from his house. He was emphatic that he was not properly identified and the First Report would have answered pertinent questions relating to his identification.

25. In this regard, he referred this court to the case of Tekerali & Others vs Republic Vo 19 (1952) EACA pg 259 where he said it was held as follows:-

“Evidence of the first report to a person in authority are important as they often provide a good test by which the truth and accuracy of subsequent statements may be guarded and provide a safeguard against (sic)”

26. He submitted that this was a violation of his constitutional rights that are enshrined in Article 50 (1)(2)(l) that provides as follows:-

“Every accused person has a right to be informed of evidence the prosecution intends to rely on, and to have reasonable access to that evidence.”

27. On its part, the State pointed out that on 30th March 2016, the Appellant requested for a copy of the Occurrence Book (OB) Extract which was duly furnished to him and he could therefore not purport that his constitutional rights had been infringed upon.

28. It is indeed true that on 30th March 2016, the Appellant requested for a copy of the OB Extract and the Prosecutor informed the Trial Court that he would supply the same to him. When the matter came up on 6th April 2016, the Appellant and his Co-Accused indicated that they were both ready to proceed with the hearing. Subsequently, the matter proceeded on several other days until the Prosecution closed its case on 8th June 2016.

29. When the matter came up for the defence hearing on 27th July 2016, both the Appellant and his Co-Accused indicated that they were ready to proceed. At the conclusion of the defence cases, they did not make any reference to the said OB Extract.

30. The proceedings revealed that save for the request of the OB Extract on 20th March 2016, the same was never alluded to during the trial. The Prosecution did not also tender the same in evidence. The Appellant could not therefore purport at the appellate stage to contend that his rights under Article 50 of the Constitution of Kenya, 2010 had been infringed upon. If he was never furnished with the said First Report, it was his responsibility to inform the Trial Court that he had not received the same so that it could issue further orders on the same.

31. Having failed to raise to issue before the Trial Court, do so, the Appellant’s Amended Ground of Appeal No (2)had no merit and the same is hereby dismissed.

B. IDENTIFICATION

32. Amended Ground of Appeal No (1) was addressed under this head.

33. The Appellant placed reliance on the case of Ndege Marangwa vs Republic (1964) ZA 156 where the court therein stated as follows:-

“The burden of proving in criminal law proceedings is throughout on the prosecution and it’s the duty of the trial judge to look at the evidence as a whole.”

34. He submitted that the Prosecution ought to have tendered in evidence data of the mobile phone he was said to have been using to communicate with PW 2 on 3rd and 4th August (sic) because this could have linked him to PW 2 and put him squarely as the perpetrator of the two (2) offences.It was his contention that all sim cards in Kenya are registered and that the Learned Trial Magistrate misdirected herself by placing burden of proof on him.

35. He added that PW 2 was not a credible witness because No 86785 PC Naju Merita (hereinafter referred to as “PW 14”) testified that PW 2 gave them a mobile number belonging to “Rasta”. He pointed although in his evidence PW 2 seemed to suggest that they were well known to each other, he purportedly gave PW 14 a mobile number belonging “Rasta” and not for Maghanga Mwazo Mwanjewe.

36. He also contended that the fact that PW 2 hired a vehicle from Daniel Muthoka Thusi (hereinafter referred to as “PW 3”) a day before the alleged offence pointed to the fact that he was the master planner of the alleged robbery but had now framed him as the perpetrator of the offence herein.

37. The State referred this court to the case of Republic vs Eria Sebwato CRA No 37 of 1960 (UR) where the court therein held that the evidence to implicate an accused person is entirely that of identification and it must therefore be watertight so as to justify a conviction. It also placed reliance on the case of M’Riungu vs Republic (1983) KLR 455 where it was held that where the accused person was known to the witnesses, it was a question of whether they recognised him.

38. The State was categorical that the Appellant herein was positively identified as having been the perpetrator of the offences herein. It stated that PW 2 confirmed that he knew the Appellant prior to the incident herein. It also averred that PW 4 testified that he took down the details of Motor Cycle Registration Number KMDN 337 A Haojin (hereinafter referred to as “the subject Motor Cycle”) that led them to Kasighau in the morning hours and it was the same Motor Cycle the Appellant had when he was arrested about four (4) days after the robbery. It was its further contention that No 238150 APC Joseph Malasi (hereinafter referred to as “PW 11”) actually recovered the keys of the subject Motor Cycle from the Appellant herein.

39. It was emphatic that PW 2 and PW 4 were in the company of the Appellant as they went to Kabanga mines and they therefore recognised him. It averred that on 3rd August 2015, PW 2 hired the subject Motor Vehicle as he was to purchase sand from the Appellant herein. At about 5. 00pm, the Appellant called PW 2 and asked him to collect him from his house. PW 4 who was accompanied by PW 6 ferried PW 2 in the subject Motor Vehicle and they collected the Appellant and another person from his house. They travelled for quite a long time and stopped at an unknown place at about 9. 00am.

40. This court agreed with the State that the several hours PW 2 and PW 4 spent with the Appellant and his colleague as they travelled to Kabanga mines were sufficient for them to have identified and recognised them. The Appellant’s identification as having been the person who boarded the subject Motor Vehicle could not be a mistake because the first contact was at 5. 00pm when the lighting conditions were favourable for identification and recognition.

41. Notably, PW 2 passed through the Appellant’s house to collect him before they travelled to Kabanga. This pointed to the fact that they were both familiar with each other. In his Cross-examination, PW 2 did in fact state that he used to buy sand from the Appellant herein. In addition, as PW 2, PW 6 and the Appellant sat at the rear of the subject Motor Vehicle throughout the journey to Kabanga mines, mistaken identity was not a possibility.

42. It was therefore the view of this court that the Learned Trial Magistrate arrived at the correct conclusion when she found and held that the Appellant was positively identified and placed at the scene of the robbery as he was recognised byPW 2, PW 4 and PW 6.

43. Her reliance on the case of Anjononi & Others vs Republic (1980) KLR 59 on the issue of recognition of the Appellant herein was relevant in the circumstances of the case herein. The holding in the said case was that:-

“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other…”

44. As the Appellant had been recognised by PW 2 and positively identified by PW 4 and PW 6, it was not necessary for the Prosecution to have adduced in evidence, data from his telephone provider to link him to PW 2 or to conduct an identification parade.

45. In the circumstances foregoing, there was no merit in Amended Ground of Appeal No (1)and the same is hereby dismissed.

C. EVIDENCE OF THE PROSECUTION WITNESSES AND DEFENCE

46. Amended Grounds of Appeal Nos (3), (4) and (6) were dealt with together as they were all related.

47. The Appellant submitted that the Learned Trial magistrate erred when he believed PW 2’s assertions that he hired the subject Motor Vehicle from PW 3 without having seen the said Motor Vehicle. He argued that the subject Motor Vehicle and ownership documents ought to have been adduced as evidence before the Trial Court to prove PW 3‘s ownership of the same.He averred that the tension and restlessness PW 3 said he had on the material night could only have meant that he was aware of the commission of the said offence.

48. He added that No 40636 Sgt Stephen Samkul (hereinafter referred to as “PW 10”) testified that he collected six (6) spent cartridges and one (1) unspent cartridge which contradicted the evidence of No 235253 IP Reuben Kiptum Bett (hereinafter referred to as “PW 12”) who told the Trial court that a police officer by the name of Shem Asher brought to the Voi Police Station eight (8) spent cartridges, one (1) fired bullet and ammunition.

49. On its part, the State set out the evidence demonstrating that the Appellant was involved in the robbery that took place at the Kabanga mines. It submitted that the fact that the Appellant was arrested four (4) days after the incident did not diminish his involvement in the offences herein.

50. It also argued that the contradictions between PW 10’s and PW 12’s evidence on the number of cartridges were minor because what was important was that the spent bullet cartridges was proof that a firearm was used at the material time of the robbery. It stated that this was as necessary as an aspect of whether the perpetrators of the offence were armed with a dangerous offensive weapon. It was not how many times the perpetrators fired their weapons.

51. It placed reliance on the case of Dima Denge Dima & Others vs Republic CRA No 300/2007(full citation of case not given), the Court of Appeal stated as follows:-

“the elements of the offence under Section 296(2) are three in umber and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”

52. A perusal of the proceedings shows that on the aforesaid date and time, the Appellant lured PW 2, PW 4 and PW 6 to the Kabanga mines whereat more accomplices joined him with a view to robbing the said mines. They held PW 2, PW 4, PW 6 and workers at the said mines hostage as they loaded the loot in the subject Motor Vehicle. The cartridges that were discharged from three (3) firearms were found at the scene. The firearms were yet to be recovered by the time the matter went to trial.

53. It was the considered view of this court that the fact that PW 10 testified that he collected six (6) spent cartridges and one (1) unspent cartridge at the scene at Kabanga while PW 12told the Trial court that the said Shem Asher brought to the Voi Police Station eight (8) spent cartridges was not a material contradiction. It was sufficient to demonstrate that there had been a firearm at the material time of the robbery so as to satisfy another of the ingredient of the charge under Section 296(2) of the Penal Code.

54. Indeed, contradictions in the evidence that is adduced must be so divergent sufficient to raise doubt in the mind of the court as to what the real circumstances of a case before it were. Minor discrepancies ought to be ignored if they do not affect the main substance of the case before it.

55. This court therefore associated itself with the views that were expressed in the case of Twehangane Alfred vs Uganda Crimi. App. No 139 of 2001 [2003] UGCA 6 where 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.”

56. Section 296(2) of the Penal Code provides as follows:-

“If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company with one or more other persons, or if, at or immediately before or immediately after the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

57. The Prosecution adduced evidence that demonstrated that the following ingredients under Section 296(2) of the Criminal Procedure Code existed in this particular case. These were that:-

a. The Appellant was in the company of more than one (1) accomplice; and

b. The Appellant and his accomplices were armed with three (3) firearms which were offensive and dangerous weapons.

58. There was no evidence that the Appellant and his accomplices used violence before, during or after the robbery. What was evident was that they discharged bullets, whose cartridges and recovered at the scene of the incident. In any event, it was sufficient that only one ingredient exist as the same were not conjunctive. They were disjunctive.

59. The Appellant’s silence at the robbery took place was intended to mislead or hoodwink PW 2, PW 4 and PW 6 that he was not involved in the crime. If at all he was not involved, then he would also have been released by the assailants just as they had released PW 2, PW 4 and PW 6. Instead, he was left behind with the assailants and when he was arrested four (4) days after the incident, he did not allude to having been taken hostage and was in fact found in a lodging with a woman who he said he had met in the bar the previous night.

60. Having analysed and re-evaluated the evidence that was adduced in the Trial Court and taking into consideration the Written Submissions by both the Appellant and the State, this court came to the firm conclusion that the Appellant’s defence was sham. It was a poor attempt aimed at exonerating himself from the crime herein. He failed to give an alibi of the night of 4th August 2015.

61. Accordingly, this court found and held that the Prosecution proved its case beyond reasonable doubt and that the Learned Trial Magistrate arrived at the correct conclusion when she convicted the Appellant on Count I. This court was, however, of the considered opinion that as the assailants merely used the subject Motor Vehicle to load the gemstones and it was returned to PW 4 after the robbery took place, it could not be termed as having been a robbery. Suffice it to state that convicting the Appellant on Count I was sufficient. A further conviction in respect of Count II could only have been deemed to have been an over kill. The sentence could only have been held in abeyance as the Appellant could not possibly be sentenced to death as prescribed by law, twice.

62. In the premises foregoing, Amended Grounds of Appeal Nos (3), (4) and (6) were not merited and the same are hereby dismissed.

DISPOSITION

63. For the foregoing reasons, the upshot of this court’s judgment, therefore, was that the Appellant’s Appeal that was lodged on 19th September 2016 was not merited and the same is hereby dismissed.

64. It is so ordered.

DATED and DELIVERED at VOI this5th day of December2017

J. KAMAU

JUDGE

In the presence of:-

Maghanga Mwazo Mwanjewe-Appellant

Miss Anyumba for State

Susan Sarikoki– Court Clerk