[2022] KEHC 13785 (KLR)

Miano v Republic (Criminal Appeal E027 of 2022) [2022] KEHC 13785 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13785 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E027 of 2022

TW Cherere, J

October 13, 2022

Between

Justus Miano

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal S.O No. E629 of 2021 in the Principal Magistrate’s Court at Tigania by Hon. P.M. Wechuli (SRM) on 21st February, 2022)

Judgment

Background 1. Justus Miano(appellant) was charged with robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code committed on May 18, 2021 against one John Kirema upon whom personal violence was also used.

The prosecution’s case 2. The prosecution called five (5) witnesses in support of the charges. Complainant, a bodaboda rider testified that on May 18, 2021 at around 07. 00 pm, he picked two male passengers by his motor cycle KMXX 5XX and they asked to alight at a deserted place. That one of them paid him KES 100/- and the other offered to pay his fare by mpesa. That suddenly and without warning, one of the two men hit him on the face with a panga felling him. That the two men then robbed him of two mobile phone, KES 7,000/-, and fled in his motor cycle. He stated that he did not identify the robbers and only saw appellant in court. PW2 IP Ngolua and PC Saitori stated that on May 19, 2021, they rescued a suspect who was being beaten by a mob that alleged he had stolen a motorcycle. That from him, they recovered motor cycle KMXX 5XX. That nearby, they also recovered motor cycle KMXX 4XX which they were informed was being driven by another suspect that had escaped. That the arrested suspect was handed over to CPL Mburugu who caused him to be charged. That appellant was subsequently arrested on October 28, 2021 and charged.

Defence case 3. In his unsworn defence, the appellant denied the offence. He stated he was arrested at night after the vehicle he was travelling in broke down. That police officers beat him and injured him and later locked him up for three days after which he was charged with an offence he did not commit.

4. The trial court after considering the evidence found the prosecution case proved, convicted and sentenced the appellant to suffer death

The appeal 5. The conviction and sentence provoked this appeal. In his petition of appeal and written submissions, appellant argues that the prosecution case was not proved beyond reasonable doubt.

Analysis and determination 6. As the first appellate court in the instant appeal, I am required and indeed duty bound to subject the evidence tendered in the lower court to thorough re-evaluation and analysis so as to reach my own conclusion as to the guilt or otherwise of the appellant. In doing so I must give allowance to the fact that I neither saw nor heard the witnesses as they testified and therefore cannot comment on their demeanour. (See Okeno v Republic [1972] EA 32).

7. I have considered the appeal in the light of the evidence on record, the grounds of appeal and submissions for the appellant, the state having not filed any.

8. From the evidence on record, appellant was convicted on the basis that complainant had identified his voice.

9. This type of identification has received judicial consideration in numerous cases. To cite but only one, the court in Libambula v Republic [2003] KLR 683 held that:'Normally, evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice, the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it.' (Emphasis). See also Choge v Republic [1985] KLR 1.

10. Complainant stated that he did not know the appellant before the material date. He was therefore unfamiliar with appellant’s voice and could thus not have recognized a voice that he did not know.

11. Accordingly, appellant cannot be said to have been positively identified by voice and the question of identification was not therefore settled beyond reasonable doubt.

12. Further to the foregoing, the evidence on record discloses that the suspect that was found in possession of complainant’s motorcycle that appellant was convicted of robbing was released and the appellant herein who was neither identified nor found with complainant’s motor cycle convicted. Undoubtedly, appellant was convicted against the weight of evidence and such unsafe conviction and sentence cannot be sustained.

13. For the foregoing reasons, the appeal succeeds. The conviction is quashed and the sentence set aside and unless otherwise lawfully held, it is ordered that appellant shall be set at liberty.

DELIVERED AT MERU THIS 13TH DAY OF OCTOBER 2022WAMAE TW CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - PresentFor the State - Ms Mwaniki (PPC)