[2013] KEHC 1141 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 127, 129, 130 AND 133 OF 2005

MICHAEL WAFULA MUKOROSI ….....................................}

BENARD AYIEKHA MACHESO …........................................}

KENNEDY MBWANGA JAVAN ...........................................} APPELLANTS

VERSUS

REPUBLIC........................................................................... RESPONDENT

(Appeal arising from the decision of Hon. W. A. Juma, SPM in Kitale Senior Principal Magistrate's Court in Criminal Case No. 2848 of 2004 delivered on 14th November, 2005)

J U D G M E N T

The three Appellants were charged with two counts of robbery with violence contrary to Section 296 (2) of the Penal code. It was alleged that on the 17th April, 2004 at Gutongorio Farm Trans-Nzoia District, jointly with others not before Court while armed with pangas and rungus robbed Nancy Njeri Kuria (in count one) of Kshs. 40,000 and Victoria Wamboi (in count two) of a mobile phone make Motorolla and a calculator all valued at Kshs. 7,000 and at or immediately before or immediately after the time of such robbery used actual violence to the said Nancy Njeri Kuria and Victoria Wamboi.

The second Appellant (Bernard) faced a third alternate count of handling stolen goods contrary to Section 322 (2) of the Penal Code and the third Appellant (Kennedy) a third count of assault causing actual bodily harm contrary to Section 251 of the Penal Code.

It was alleged that on the 21st April 2004 at Moi Farm Trans-Nzoia, the second Appellant unlawfully handled a mobile phone make Motorolla and on the 17th April 2004, the third Appellant assaulted Shivan Wamboi and occassioned her actual bodily harm.

The three Appellants and another appeared before the Senior Principal Magistrate at Kitale and denied all the counts. They were tried and convicted on both counts of robbery with violence save the fourth suspect who was acquitted thereof. The third Appellant was also convicted on the third count of assault.

The Learned Trial Magistrate passed the death sentence on the three Appellants without necessary specification. Thus, a blanket death sentence was imposed upon the three Appellants instead of a sentence on each of the two counts of robbery with violence with an order that the second sentence be held in abeyance along with a sentence on the offence of assault against the third Appellant only.

No sentence was passed on the third count against the third Appellant.

Be that as it may, the three Appellants were dissatisfied with the conviction and sentence and preferred separate appeals which were herein consolidated and heard together.

The grounds for the appeals are contained in the respective petitions of appeal and are more or less similar.

At the hearing of the appeals, Learned Counsels, Mr. Ngeywa and M/S Arunga, appeared for the first and third Appellants respectively.

The second Appellant appeared in person and relied on his written submissions.

In his oral submissions, the first Appellant through his Learned Counsel attacked the Prosecution evidence of identification and implied that it was insufficient and not free from the possibility of error and/or mistaken identity.

The first Appellant contended that the judgment of the Trial Court did not tally with the evidence and was full of presumptions and that in considering the defence, the Trial Court shifted the burden of proof to himself.

The third Appellant through his Learned Counsel, also attacked the Prosecution evidence of identification and contended that it was insufficient. Further, the third Appellant contended that his defence was disregarded by the Trial Court and that the Trial Court relied on extraneous matters to convict him.

A number of authorities were relied upon by the first and third Appellants in support of their appeals.

The written submissions by the second Appellant were also essentially an attack on the Prosecution evidence of identification.

In opposing appeals, the State/Respondent through the Learned Prosecution Counsel, Mr. Chelashaw, submitted that the three Appellants were positively identified as there was adequate light at the scene of the offence from a television set and a lantern light. That, the second Appellant was also found in possession of a mobile phone belonging to Pw 2. That, the Learned Trial Magistrate did not rely on extraneous matters as the third Appellant had gone to the Police to report a theft as a cover up for his involvement in the material acts of robbery.

The Learned Prosecution Counsel contended that the authorities relied upon by the first and third Appellants were irrelevant as the Appellants were properly identified.

We have considered the rival submissions. Our duty as the first appellate Court is to re-visit the evidence and draw our own conclusions bearing in mind that the Trial Court had the advantage of seeing and hearing the witnesses (see, Okeno Vs Republic [1972] EA 32 and Achira Vs Republic [2003] KLR 707).

In that regard, the Prosecution case was briefly that on the material 17th April 2004, the first complainant Nancy Njeri Kuria (Pw 1) and the second complainant Victoria Wamboi Kamau (Pw 2) who are sisters were at Gutongorio Farm together with the daughter Shivon Wamboi (Pw 3), when they were attacked by a group of about three (3) people while in their house at about 10. 00 pm. The attackers were armed with a rungu (club), a slasher and a panga (machete). They manhandled and threatened the complaints before stealing Kshs. 40,000 from the first complainant (Pw 1) and a mobile phone and calculator from the second complainant (Pw 2).

The third complainant (Pw 3) was in the process assaulted and injured by one of the attackers.

The three complainants indicated that the attack lasted for approximately 20 to 30 minutes and that light from a television screen enable them identify the attackers.

The first complainant thus identified the second Appellant (Bernard) while the second complainant identified the first Appellant (Michael). The third complainant identified the third Appellant (Kennedy) and said that he was the person who attacked and assaulted her.

The incident was reported to the Police but in the meantime on the 19th April 2004, Christopher Nyongesa Wanyonyi (Pw 4) was at his home at Moi's Bridge when the second Appellant allegedly went there while intoxicated and in possession of a mobile phone which he said had been stolen from the complainants. He (second Appellant) told him (Pw 4) to call the complainant Wamboi but minutes later, the Police arrived but did not find the second Appellant. He (Pw 4) took them to the house of the second Appellant and he was arrested.

P. C. Jackson Ombati (Pw 5) and his colleagues arrested the second Appellant and recovered the alleged stolen phone from his house. He (Pw 5) investigated this case and in the process while attending to a donkey theft report made by the third Appellant (Kennedy) and another person as well as the robbery report made by the complainant (Pw 1 and Pw 2), he was informed by the third complainant (Pw 3) that the third Appellant was one of those who were involved in the robbery. He (Pw 5) arrested the third Appellant. He also arrested the first Appellant (Michael) after he was implicated by the second complainant.

C. IP. Martha Ngetich (Pw 6), conducted identification parades in which the second Appellant was allegedly identified by the first complainant along with another suspect while a Clinical Officer at Kitale District Hospital, Jimmy Peter Simiyu (Pw 7), examined the three complainants and confirmed that they suffered bodily harm after being assaulted during the robbery. He produced the necessary P3 forms.

On completion of the Police investigations, the three Appellants were charged with the present offences. They all denied the charges.

In his defence, the first Appellant indicated that he was asleep in his house at the material time of the robbery and was arrested on the following day after accompanying one Francis to the Police Station to report loss of a donkey. While there, he was led to a lady who did not know his physical appearance. He was placed in the Police cells and was later informed by Francis that a Police Officer had requested for Kshs. 15,000 for their release. He was eventually arraigned in Court while Francis was released after settling with the Police.

The second Appellant also indicated in his defence that he was at his home asleep at the material time of the robbery. He was arrested on 21st April 2004 when Police Officer went and found him in his house. The Officers searched the house and took away his mobile phone. He was taken to the Police Station and on the following morning, he was placed in an identification parade and allegedly identified by a lady he had earlier seen at the crime office and despite producing the receipt for his mobile phone.

The third Appellant indicated in his defence that he was asleep at his home on the material date of the robbery but on the following morning found that this handcart was missing. He informed his neighbours and a village elder. Thereafter, he reported the matter to the Police and in the course of investigations his donkey hand cart was recovered. The hand cart belonged to him but not the donkey which was pulling it. Thereafter, Police Officers took him to a scene where robbery had occurred. They were at the time in the company of some ladies. Later, he was taken back to the Police Station and locked in the cells for reasons unknown to him. Also locked up with him was the owner of the donkey one Francis Githae who was later released. He (Appellant three) was thereafter arraigned in Court.

Dismas Chumba Nabibia (Dw 1), confirmed that the third Appellant reported the loss of his donkey cart on the morning of 18th April 2004.

Jackline Nasimiyu Mukholosi (Dw 2) and Josephat Wafula (Dw 3) confirmed that the first Appellant was at his home on the material night of the robbery offences.

The evidence foregoing was considered by the Learned Trial Magistrate who rightly acknowledged that the entire case centered on the issue of identification and eventually concluded that the case against the three Appellants had been proved beyond reasonable doubt.

On our part, we are satisfied that there was sufficient evidence from the Prosecution establishing the necessary ingredients of the offences of robbery and assault. Indeed, the occurrence of the concurrent acts of robbery and the act of assault was not disputed. The basic issue for determination was the identification of the Appellants as having been involved in the material offences.

The offences occurred in the hours of darkness thereby presenting difficult conditions for the identification of the offenders.

In the circumstances, the Prosecution was required to present sufficient and credible evidence showing the existence of favourable conditions for identification as well as adequate opportunity for the same. Herein, the direct evidence of identification came from the three complainants (i.e. Pw 1, 2 and Pw 3). They all indicated that the primary sources of light which enabled them see the Appellants was a television set which had been switched on at the time. However, they did not indicate the intensity of the light at the material time so as to show that the light was bright enough for a positive identification of the offenders. They also did not really indicate the position of the television set vis-a-vis themselves and vis-a-vis the Appellants so as to show that they were in a position to clearly see and visualize the Appellants. It was not sufficient for them to merely say that they identified the Appellants without showing how they were capable of doing so. Seems to us that they resorted to conjecture in their alleged identification of the Appellants thereby unable to dislodge the defence of alibi raised by each of the Appellants.

The identification parades could not have vindicated the complainants for the simple reason that they could not have identified any of the Appellants in those parades if they had not clearly seen and identified them at the scene of the offence. In essence, the carrying out of the parades was a clear indication that the complainants may not have identified the persons who attacked and robbed them due to the difficult circumstances existing at the time. None of the Appellants was previously known to the complainants. This was therefore not a case of identification by recognition.

For the reason that we find that conditions for identification of the offenders at the scene of the offences were not favourable and free from the possibility of error or mistake, we do not agree with the Learned Trial Magistrate that the three Appellants were positively identified as the persons who committed the material offences. The Prosecution direct evidence of identification against the three Appellants was not sufficient and credible. Apart for the second Appellant, there was no circumstantial evidence against the first and third Appellants.

The circumstantial evidence against the second Appellant was the alleged recovery of a mobile phone comprising the items stolen from the complainants. The second Appellant's possession of the said mobile phone was not disputed by himself. He however contended that the phone belonged to him and that its receipt was handed over to the Police at the Moi's Bridge Police Station. This fact was never discredited by the Prosecution.

None of the complainants availed any credible evidence to prove that the phone belonged to them. They did not dispute the evidence availed by the second Appellant nor did they adduce evidence to invalidate the receipt showing that the phone belonged to the second Appellant.

Consequently, the circumstantial evidence adduced against the second Appellant was not credible and could not link him to the offence by dint of the doctrine of recent possession.

In the end result, we must hold that the Appellants' conviction by the Learned Trial Magistrate in all the counts was neither sound nor safe. We therefore quash the conviction and set aside the sentence imposed upon the three Appellants. The three may now be set at liberty unless otherwise lawfully held.

Ordered accordingly.

(Delivered & signed this …..5th...... day of …...November..... 2013).

J. R. KARANJA

JUDGE

E. OBAGA

JUDGE

In the presence of:

Appellants: ….................................................

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Respondent: ….................................................