[2024] KECA 1298 (KLR)

Mbuba alias Double & 5 others v Republic (Criminal Appeal 12A of 2016) [2024] KECA 1298 (KLR) (20 September 2024) (Judgment)

Neutral citation: [2024] KECA 1298 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Criminal Appeal 12A of 2016

W Karanja, LK Kimaru & AO Muchelule, JJA

September 20, 2024

Between

Arnold Mugendi Mbuba Alias Double

1st Appellant

Hamisi Gitonga Mutegi Alias Karisongo

2nd Appellant

Willington Ntwiga alias Tosha

3rd Appellant

Elijah Mawira Justus

4th Appellant

Lawrence Gikundi Mugo

5th Appellant

Franklin Kimathi Murungi

6th Appellant

and

Republic

Respondent

(Being an Appeal from the judgment of the High Court of Kenya at Chuka (A. Mabeya, J.) dated 21st April 2016 in HCCRA Nos. 12 of 2015; 40 of 2015; 45 of 2015; 47 of 2015; 48 of 2015; 49 of 2015 Criminal Appeal 45 of 2015 )

Judgment

1. On 6th November 2011 at about 8. 30pm Dennis Muchiri Karere (PW 2) was in his single roomed house with his late wife Sharon Salome Mwende and his son. They were watching television. It was raining outside. The house was lit using electricity. There was a knock on the door. PW 2 asked his wife to go and open. Upon the door being opened, about seven (7) men entered the house while armed with knives, iron bars and whips. PW 2 got up and he was cut on the head by one of the attackers who was using a knife. This attacker had demanded money and PW 2 had given him cash Kshs.33,000. The attackers took his phone and his wallet that had his ID card, Equity Bank ATM card and other assorted cards. His wife was screaming for help. She was attacked and stabbed. She died the same night at Chuka District Hospital from the injuries. People came to the couple’s rescue but after the attackers had left. They took the couple to the hospital. PW 2’s phone, ID Card and documents were found outside his house.

2. Police swung into action and, following information, arrested in all seven (7) people who were Arnold Mugendi Mbuba alias Double (1st appellant), Hamisi Gitonga Mutegi alias Kalisongo (2nd appellant), Pharis Mutembei Mutegi (who was the 3rd accused), Willingson Ntwiga alias Tosha (4th appellant), Elijah Mawira Justus (5th appellant), Lawrence Gikundi Mugo (6th appellant) and Franklin Kimathi Murungi (7th appellant). For each of them, an identification parade was conducted at Chuka Police Station where PW 2 was the only identifying witness. He identified each of them as being his attacker during the material incident. As a result, all the seven were jointly charged at the Chuka Principal Magistrate’s Court with robbery with violence contrary to section 296(2) of the Penal Code. The particulars were that on 6th November 2011 at Kiereni Trading Centre in Mugwe Location of the Tharaka Nithi County, they, jointly with others not before the court, while armed with dangerous and offensive weapons namely knives, pangas and metal bars, robbed PW 2 of one mobile phone make Nokia, one Equity Bank ATM card, one National Identity card, assorted documents and cash Kshs.33,000, all valued at Kshs.37,000 and at the time of such robbery injured the said PW 2 and murdered Salome Sharon Mwende.

3. Each of the seven accused denied the charge. They were tried and all, except the 3rd accused, were jointly convicted and sentenced to death.

4. Each appellant challenged the conviction and sentence on appeal to the High Court at Chuka. The appeals were heard by the learned A. Mabeya, J. who dismissed each appeal in its entirety.

5. This is therefore a second appeal. Our mandate, as prescribed vide section 361 of the Criminal Procedure Code, is to deal with only matters of law. We will not interfere with the concurrent findings of fact by the two courts below unless these findings were based on no evidence. (See Karingo -vs- Republic [1982] KLR 213).

6. The complaint by the appellants was that the charge against them had not been proved beyond doubt; the identification parade on which their convictions rested was flawed and prejudicial; there was insufficient evidence to place them in the attack; and that their defences had not been properly considered.

7. During the hearing of the appeal, learned counsel Mrs. Thianguri appeared for the 1st and 7th appellants, learned counsel Mrs. Ng’ang’a appeared for the 2nd and 4th appellants and learned counsel Mr. Kimunya appeared for the 5th and 6th appellants. Learned counsel Ms. Nandwa appeared for the State. Each counsel had filed written submissions. They were relied upon.

8. It is common ground that PW 2 was the only witness called to say that he had seen and identified each appellant in the attack. The stolen items were not recovered on any of the appellants. PW 2 did not describe any of the attackers to either the police officers or to the members of the public who came to his rescue this night. Even for the 1st appellant who was PW 2’s neighbour and well known before the attack, the complainant did not give his name or say to the police and to those who came this night that he was in the attack. He was arrested on account of information given to police.

9. The 2nd appellant has one eye. This is his distinctive mark. PW 2 did not inform the police or those who came to his rescue that one of the attackers had one eye. All the parades were conducted by PW 6, Benjamin Marua, who was then the OCS of Chuka Police Station. PW 6 testified before to the trial court that the 2nd appellant was the only person in the parade of eight (8) members who had one eye. He stated that he was not able to find any other person with one eye. Despite the 2nd appellant’s complaint that the parade was prejudicial to him as he was the only physically different member of the parade, both the trial court and the 1st appellate court found that the parade had been procedurally conducted and that the appellant had been properly identified. Fortunately, during this appeal, learned counsel Ms. Nandwa conceded that this was not a properly conducted identification parade, therefore, that the conviction of the appellants had not been safe and that the learned Judge had erred in accepting the findings by the trial court. We shall come back to this aspect of the appeal later in this judgment.

10. The learned Judge in confirming the conviction of the appellants observed that the appeal before him rested on the sufficiency of a single identifying witness. That witness was PW 2. As was stated in R. -vs- Turnbull [1976] 3 ALL ER 549 and reiterated in many decisions of this Court, including Cleophas Otieno Wamunga -vs- R. [1989]eKLR and Roria -vs- Republic [1967]EA 573, a conviction can be based on the identification of the accused by a single witness. However, the evidence of such a witness must be tested with the greatest care. The trial court must carefully examine the conditions under which the witness identified the accused. It must be quite clear what was it about the accused that made the witness identify him and such testimony should be supported by a properly arranged identification parade in which the accused is picked by the witness.

11. As was acknowledged by the learned Judge, the attack was at night and by about seven (7) people each of whom was armed. PW 2 and his wife and son were found in one roomed-house. The incident took 30 minutes or so, and the room was lit using electricity. The room was ransacked, PW 2 cut and injured. His wife was cut and bled profusely. She died almost immediately following the injury. This was a very violent attack by many people who must have crowded the room. Certainly PW 2 feared for his life. The circumstances were difficult. It is in these circumstances that PW 2 stated that he identified his attackers. What has worried us, however, is that he did not describe any of the attackers to those who immediately came to answer his distress call, and to police who responded to the report regarding the attack. It is where a witness has given the police the description of his attacker that the police, using that description, can go out there and look for, and arrest, the person fitting that description. The arrested person will then be paraded in a properly convened identification parade along with other members of similar description to see whether he can be identified by the witness. (See Peter Mwangi Mungai -vs- Republic [2002]eKLR).

12. In the case of the 1st appellant who was known by name to PW 2, and was a neighbour, we are concerned that the learned Judge did not consider it unusual that PW 2 did not immediately give out his name for him to be traced and arrested. In nearly similar circumstances, this is what this Court observed in Cleophas Otieno Wamunga case -“If the appellant had been seen among the robbers and reported as alleged it is most unlikely that he would have remained at large for another 5 days before being arrested. If his name was given to the AdministrationN Policeman, it would have greatly assisted the prosecution’s case if this Officer had been called to testify as such. Both Indakwa and the maid said in evidence that they also gave the appellant’s name to the police at Yala Police Station. If they did, then how does one explain the answer given by one of the police witnesses that he got the names of the robbers from his informer.”

13. In the instant case, the 1st appellant was arrested because of an informer and not that PW 2 gave his name to the police. We disagree with the learned Judge’s finding that the appellant was recognized by PW 2 in the attack. If he was in the attack, and PW 2 saw him, his name would have been given to police to effect his arrest. We should add that, it is trite that once a witness states that the attacker was a person known to him, an identification parade is valueless. (See Fredrick Ajode Ajode - vs- Republic [2004]eKLR).

14. PW 2 did not tell the police that one of his attackers had one eye. So, when the police arrested the 2nd appellant who had one eye, they were not responding to a description given by PW 2. If the 2nd appellant was in the attack, and had been identified by PW 2 on account of his distinctive disability, that information would have been given to police. Force Standing Orders commanded that where the 2nd appellant had such obvious disfigurement, he was to be placed among at least eight persons who, as far as it was possible, had similar defect. When PW 6 was not able to locate persons with one eye to be in the parade with the 2nd appellant, that ought to have ended the parade.The identification parade should have been abandoned. Otherwise, the 2nd appellant was disadvantaged, and prejudiced, when he was the only member of the parade with one eye. This, we find, was not a properly conducted identification parade.

15. There is the 3rd accused whom PW 2 stated that he identified in the attack as one of the seven (7) or so robbers, and subsequently identified him in the parade. The trial court disbelieved PW 2’s evidence because the accused relied on alibi defence and called witnesses to support his defence that he was elsewhere at the time of the attack. All the appellants denied being in the attack and each indicated where he was that night. It meant that each appellant was saying he was elsewhere at the time of the attack, and that he was therefore not in the attack. Each appellant gave sworn evidence and did not call a witness. It is trite law that an accused who raises the defence of alibi has no obligation to prove his alibi. The burden of proof does not shift to him. It is the prosecution to call evidence to dispute the alibi, and to show beyond doubt that the accused was at the scene at the time in question and committed the offence. (See Kiarie -vs- Republic [1984] eKLR).

16. First, if PW 2 stated that he saw and identified the 3rd accused but the trial court disbelieved this, then why was the witness believed in respect of the other appellants? Secondly, the alibi defence of the appellants was discounted because they had not called witnesses to support what they were saying regarding where they were that night. The 3rd accused who called witnesses was acquitted. It means that the trial court shifted the burden of proof on the appellants to each prove his alibi.

17. In total, having considered all the submissions, we determine that the learned Judge erred when he confirmed the appellants’ conviction. The evidence on which the appellants were convicted was not safe at all.

18. The consequence is that we allow the appeal, quash the conviction and set aside the sentence. Each appellant shall forthwith be set at liberty unless otherwise lawfully held.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER 2024. W. KARANJA................................JUDGE OF APPEALL. KIMARU................................JUDGE OF APPEALA.O. MUCHELULE................................JUDGE OF APPEALI certify that this is a true copy of the Original.SignedDEPUTY REGISTRAR