[2023] KEHC 25003 (KLR)

Mbeche v Republic (Criminal Appeal E115 of 2022) [2023] KEHC 25003 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25003 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E115 of 2022

RPV Wendoh, J

November 2, 2023

Between

Paul Mwita Mbeche

Appellant

and

Republic

Respondent

(An Appeal from original conviction and sentence by Hon H. C. Maritim – Resident Magistrate in Migori Chief Magistrate’s Criminal Case No. E064 OF 2021 delivered on 31/10/2022)

Judgment

1. Paul Mwita Mbeche, the appellant, was convicted by the Senior Principal Magistrate Kehancha on 31/10/2022 and was sentenced to suffer death. He had been charged for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. He is alleged to have robbed George Monanka Nyamohanga of a Samsung Galaxy A11S Vnus phone, ATM (Family Bank) all worth Kshs. 28,500/= on 14/4/2021 at Kegweso village Igena Sub location, while armed with a dangerous weapon namely, AK 47 Rifle and immediately or at the time of the said robbery, shot dead the said George Nyamohanga.

2. To prove their case, the prosecution called a total of six (6) witnesses whereas the accused gave a sworn statement in his defence.

3. The appellant is aggrieved by the conviction and sentence and filed this appeal based on the following grounds:-1. That the court erred by failing to comply with Article 50 (2) (g) & (h) of the Constitution;2. That the ingredients of the offence of robbery with violence were not proved to the required standard.

4. He therefore prays that the conviction be quashed and sentence set aside. The court directed that this appeal be canvassed by way of written submissions. The Respondents filed their submissions. Despite the fact that the appellant claimed to have filed his submissions and was given time to resend them, at the time of writing this judgment the appellants submissions had not been filed.

5. This being a first appeal, it behoves this court to thoroughly re-examine all the evidence tendered before the trial court, evaluate and analyse it and arrive at its own conclusions although it should bear in mind that this court neither saw nor heard the witnesses testify. The court is guided by the decision in Okeno v Republic (1972) EA 32 where the court said:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R., [1957] E.A. 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] E. A. 424. ”

6. The prosecution case was as follows:-

7. PW1 Lilian Boke Chacha, an Mpesa attendant, was at the Mpesa shop at about 3:00p.m on 14/4/2021 having left home. After she gave Maurice food about 7:00p.m her daughter called to tell her that George had been shot; that George had been driving her brother’s Nissan matatu. She proceeded to the scene and found his lifeless body. They placed it in the vehicle and took it to hospital where the doctor confirmed that he was dead. PW1 stated that George lost a wallet, money and mobile phones and that his phone Vnus and Family Bank ATM were late recovered and she identified them in court.

8. PW2 Maurice Mwita Monanka, an employee of Lilian (PW1) recalled that about 7:00p.m, Emily called to inform him that George had been shot. He drove home and found George’s body in the Probox vehicle and took it to Hospital but he was pronounced dead on arrival. He saw the police collect the cartridge. He later learned that the items stolen from George were recovered.

9. PW3 Felix Sikera, was an uncle to the deceased, George. On 29/4/2021, PW3 identified the body to the Doctor before post mortem was conducted.

10. PW4 CIP Kennedy Chomba, of DCI Nairobi Headquarters from Forensic Ballistic Section, a Ballistic expert recalled that on 22/4/2021 he received 2 cartridges (A& B) from CIP Kipkemboi together with the exhibit memo form and was requested to establish the type of weapon that fired A & B, whether the rifle that fired A & B has been used elsewhere in Kenya and the calibre of cartridges A & B. He did examine A & B and found that A & B was of Calibre 7. 62 x 3g mm; that it was fired by AK 47 assault rifle which had been used in two murder incidents in Isebania Township reported in OB No. 47/28/02/2021 report 200/2021 and Attempted robbery with violence incident in Isebania, OB No. 33/11/03/2021; that on 21/4/2021, police from DCI Transmara West, Kilgoris Police Station Mashango Area recovered a firearm with 10 rounds of ammunition which they took to the laboratory and upon test firing, obtained 3 known cartridge cases and confirmed with the 2 before court and they had sufficient markings injector marking bridge faces markings, firing pin markings which made him form the opinion that Ex A & B were fired from the AK 47 that was recovered by DCI Officers. He produced all the items as PEX 5 (a) to (1, b).

11. PW5 George Gikonyo Ndungu of DCI Transamara West recalled that on 21/4/2021 , the DCIO Wasike asked him to accompany him to Mashango in the home of Paul Mwita Mbeche about 8:00 p.m to 9:00p.m. They proceeded there and recovered an AK 47 rifle , mobile Vnus and ATM card in the name of George Monanka; that two suspects were charged with being in possession of J firearms and that the appellant pleaded guilty in Kilgoris E152 of 2021 and was jailed for five (5) years.

12. PW6 CPL John Meli was the investigating officer in the matter recalled that on 14/4/2021, he was with PC Kyalo and the DCIO were led by one Chacha to hospital at Kehancha where they found George Monanka who had been shot but was already dead and had bullet wounds to the chest and leg. They proceeded to Kegweso village, the home of Lilian (PW1) where they found motor vehicle KCN 984 M Probox with the drivers door open, where they recovered a spent cartridge which they kept as an exhibit. Later, another spent cartridge was taken to the police station by members of public; Postmortem was done on 19/4/2021 and later he learnt from the DCIO that a gun had been recovered in Kilgoris. On 18/5/2021, together with PC Kyalo and Tanui, they went to Kilgoris where they found DCIO Wasike who informed them that he had information of a recovered gun in Mashango Area where his officers recovered an AK 47 rifle, a Family Bank ATM and several phones which were found with 4 suspects who were arrested. He handed the items to the investigating officer in the case one George Ndungu who showed them the phones and ATM card which bore the name of George Monanka, the deceased. He confirmed from the deceased’s family what was stolen. He took the spent cartridges to a Ballistic expert. He confirmed with Family Bank that the ATM belonged to the deceased and Lilian took a receipt to the office confirming that the Vnus phone belonged to the deceased.

13. PW7 Dr. Evans Omondi recalled that on 19/4/2021, he examined the body of the deceased at Akidiva Midira Hospital. He noted two bruises on the neck, wounds on the trunk, wounds to the left leg and inner thigh; blood in the stomach and perforated intestine. He formed the opinion that the cause of death was bleeding in the stomach following gun shot wounds.

14. When called upon to defend himself, the appellant testified on oath that on 14/4/2021, he was at home and no incident occurred; that on 21/4/2021, he was at home when police officers arrested him; that he used to brew changaa and used to pay a police officer; that the officers went to his home with colleagues and he told the officer he had no money and was arrested. He denied any knowledge of this case. He denied that he was found with a firearm but admitted pleading guilty in the case.

15. The prosecution counsel Mr. Owuor filed submissions to the effect that the trial court complied with article 50 (2) (g) and (h) of the Constitution; that the prosecution established all the ingredients required to prove a charge of robbery with violence as was held in the case of Johanna Ndungu v Republic Criminal Appeal No. 116 of 1955; which are that :-1. The offender was armed with an offensive weapon; or2. That the offender was in company of more than one person;3. That after the said robbery, he strikes, beats or visits violence on any person;4. That the perpetrator was positively identified.

16. Counsel urged that though nobody saw who robbed the deceased, that the appellant was found in recent possession of goods stolen from the deceased and relied on the case of Ng’anga Kahinga alias Peter Ngenge Kahinga v Republic Criminal Appeal 2721 of 2005 where the court defined what constitutes ‘recent possession’.

17. I have now considered the grounds of appeal and the Respondent’s submissions.

18. The first issue I wish to consider is whether the trial court violated the appellants rights under article 50 (2) (g) and (h) of the Constitution. Compliance can be discerned from the court record, which I must examine. Article 50 (2) (g) and (h) provided as follows:-50(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly.(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly.

19. Article 50 of the Constitution provide, and guarantees an accused person’s right to fair trial. The said rights cannot be derogated by virtue of article 25 (c) of the Constitution. Under sub article 2 (g) the court is under a duty to inform the Accused of his right to be represented by counsel of his own choice. The court has to inform the accused of such right promptly before plea is taken or before the hearing commences. This is to enable the accused make a decision whether or not to seek services of counsel or seek services of counsel from the Legal Aid Committee. At paragraph 23 in Chacha Mwita v Republic Criminal Appeal 33 of 2019, the court considered the said right when it cited in S. v Daniels & Another 198 (3) 275 A at 299 G – H the South African Court emphasised that the duty to inform the accused person squarely lies on the court, when it stated;“… the accused’s rights were explained to him, must appear from the record, in such a manner as, and with sufficient particularity, to enable a judgment to be made as to the adequacy of the explanation.”

20. In Mphukwa (S. CA & R 360 /2004) the South African court again said:-“…… a general duty on the part of judicial officers to ensure that unrepresented accused fully understand there rights and the recognition that in the absence of such understanding, fair and just trial may not take place.”

21. The Kenyan courts followed the above decision in Joseph Kiema Philip v Republic (2019) eKLR.

22. I have looked at the court record. The appellant appeared before the court for plea on 30/6/2021. After plea was taken, the court then informed the appellant of his right to Legal representation at his own costs. This court is satisfied that the court complied with article 50 (2) (g) of the Constitution.

23. As for article 50 (2) (h) the right there under is not automatic. The provision states that the accused should be informed of his right to legal counsel at the State expense if ‘substantial injustice’ would otherwise arise. The important phrase here in “substantial injustice would otherwise arise”.

24. In the case of Karisa Chengo v Republic Criminal Appeal (2017) eKLR the Supreme court observed that in determining whether substantial injustice would arise, the court has to consider:-1).The seriousness of the offence2).The severity of the sentence3).The ability of the Accused person to pay for his own legal representation; whether the Accused is minor4)The Literacy of the accused and complexity of the charge.

25. In Kenya today, only persons charged with murder and children in conflict with the law are entitled to automatic legal representation at State expense. It was therefore necessary that the factors enumerated above exist. The appellant has not demonstrated that he has suffered injustice due to the above factors.

26. There is no evidence that the appellant’s right under Sub Articles 50 (2) (h) was violated.

27. The appellant faced a charge of robbery with violence. Being a criminal charge, the prosecution had the duty to prove the charge beyond any reasonable doubt. The term beyond reasonable doubt was espoused in the case of Woolmington v Republic to mean as follows:-“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

28. In the case of Oluoch v Republic (1985) KLR, the Court of Appeal held that:-Robbery with violence is committed in any of the following circumstances:1. The offender is armed with any dangerous and offensive weapon or imprisonment; or2. The offender is in company with one or more person or persons; or3. At 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 court said that proof of anyone of the three ingredients is sufficient to establish an offence of robbery with violence.

29. In the case of Johana Ndungu v Republic Criminal Appeal No. 115 of 1995 the court also added that the act of stealing must be proved together with the identity of the perpetrator .

30. As observed earlier in this judgment, nobody witnessed the incident in which the deceased, George Monanka met his death and was robbed. What the prosecution primarily relies upon is circumstantial evidence against the appellant. In the case of Ahamad Abolfathi Mohammed & 2 others v Republic (2018) eKLR the Court of Appeal had this to say on this point:-“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

31. See also Neema Mwandoro Nduzya v Republic (2008) eKLR .

32. The court in Abanga alias Onyango v Republic Criminal Appeal No. 32 of 1990 set out the conditions that must exist before the court can base a conviction on circumstantial evidence. The court said :-“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; 9iii)the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else."

33. In Sawe v Republic(2003) EKLR 2020, the Court observed that the prosecution must establish that there are no other co-existing circumstances which could weaken or destroy the inference of guilt. In Mwangi and Another v Republic 2 KLR 32, the court said:-In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the Accused is guilty of the charge”

34. The circumstantial evidence that tends to connect the appellant to the offence is that he was found in possession of some of the property that was stolen from the deceased during the robbery, some days after the robbery. PW5, George Gikonyo of Transmara DCI told the court that on 21/11/2021, while in company with the DCIO, they went to the home of the appellant where they recovered a gun AK 47 Rifle, a mobile phone Vnus and ATM card in the name of George Monanka. The investigating officer PW6, produced a letter from Family Bank (PEX 14) confirming that the recovered ATM card belonged to the deceased. A receipt PEX2 was produced by PW1 confirming that the Vnus phone belonged to the deceased. PW6 told the court that they recovered one spent cartridge at the scene of the robbery while another cartridge was taken to the police station by members of public. The cartridges were forwarded to the Ballistic expert PW4, who examined them and confirmed that the two spent cartridges were fired from the AK 47 that was recovered in possession of the appellant.

35. The deceased was shot dead on 14/4/2023. The AK 47 and other exhibits were recovered in the appellant’s possession on 21/4/2021 about seven (7) days after the shooting. The appellants’ defence was a bare denial. Though he denied having been found with the AK 47, he admitted that he pleaded guilty in the Kilgoris case where he was charged with others for possession of firearms. Besides, when PW5 testified that the appellant was found with the rifle, the phone and ATM card, the appellant did not challenge or dislodge that evidence at all. The defence was hollow and a bare denial which the trial court rightly rejected. I am satisfied that the trial court arrived at the proper finding that the appellant was found in possession of the gun that killed George Monanka. Violence was visited on the George Monanka that ended his life.

36. Whether the appellant was found in recent possession of the deceased’s ATM Card and phone; the doctrine of recent possession entitles the court to draw an inference of guilt where an accused is found in possession of recently stolen property in unexplained circumstances. In the case of Eric Otieno Arum v Republic Ks CA 85 of 2005, (2016) eKLR the court stated as follows:-“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”

37. Again in Paul Mwita v RepublicKisumu Criminal Appeal No. 200 of 2008, the Court of Appeal said:-“Once an accused person is found in possession of recently stolen property, facts of how he came into possession of the recently stolen property is (sic) especially within the knowledge of the accused and pursuant to the provisions of section 111 of the Evidence ActChapter 80, the accused has to discharge that burden.”

38. Once the facts are established, the accused bears the evidential burden to give a reasonable explanation of how he came to be in possession of the stolen goods. However, the prosecution remains with the legal burden to prove its case to the required standard. In the instant case, the ATM card and phone were identified to belong to the deceased. They had been stolen during a robbery seven (7) days earlier. Whereas it may be easy to dispose of a phone, it may not be easy to dispose of an ATM Card or there may be no reason to dispose of it. In the circumstances, this court is satisfied that the appellant was found in recent possession of property stone from the deceased, Monanka, for which he did not offer an explanation. The same directly links him to the robbery just as the recovery of AK 47 did.

39. In the end, I find that the prosecution has proved that violence was meted on George Monanka who met his death during the robbery and the appellant was armed with a dangerous weapon i.e AK 47. The ingredients of the offence of robbery with violence, contrary to Section 296 (2) were proved beyond reasonable doubt. I find that the circumstantial evidence unerringly points at the appellant as the robber. I am in agreement with the trial magistrate as regards the conviction and I affirm it.

40. The appellant was sentenced to suffer death as per the law provided. From the Francis Muruatetu case, the Supreme Court death with a charge of murder. Though the offence of robbery with violence was not dealt with, the courts are tending to move away from mandatory sentences because they take away the court’s discretion in sentencing. Bearing the above in mind, and in exercise of this court’s discretion, bearing in mind the aggravating circumstances which led to the death. I hereby set aside the death sentence and substitute it with forty (40) years imprisonment.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 2ND DAY OF NOVEMBER, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino Prosecution CounselAppellant PresentMs. Emma/ Phelix –Court Assistant