[2013] KEHC 1394 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 287 OF 2010

MICHAEL WANJAU MAHINGE.........................................APPELLANT

Versus

REPUBLIC…................................................................RESPONDENT

(Appeal from conviction and sentence in Karatina Principal Magistrate's Court (Hon. L. Mbugua Ag. SPM) delivered on 9th November, 2010)

JUDGMENT

The appellant was charged with the offence of Robbery with Violence Contrary to Section 296(2) of the Penal Code.

The particulars of the offence were that on 31/10/09 at Gatiko village in Nyeri North District, the appellant jointly with others not in court while armed with dangerous weapons namely rungus, robbed one Rose Jambi Mwaniki of cash Kshs.3000, a Nokia mobile phone, a leather bag, a National ID card, one wallet and some assorted items all worth Kshs.5,500, the property of the said Rose Jambi Mwaniki and at or immediately after the time of such robbery used personal violence to the said Rose Jambi Mwaniki.

At the close of the prosecution case, four witnesses testified. The complainant was one of them (PW1) and she explained how on 31/10/09 around 5. 00 pm, she had alighted from a vehicle at Mahigaini. As she walked home she met appellant whom she knew as Wanjau from the area. He was eating a sugar cane. appellant had then followed PW1, seized her and started to hit her with the sugarcane and with his hands. He had then taken away her hand bag after making her to fall down and strangling her.

PW1 had reported matter to the grandmother of appellant and then to his grandmother. Then she informed her family and members of community policing unit and then to the police on 2/11/09.

PW3, a member of the community policing unit found the appellant seized by a crowd on 3/11/09 as word was already out in the village regarding what appellant had done.

The crowd was beating appellant. PW3 beseeched them to stop beating him and requested the appellant to produce the items of PW1. It is then that appellant led the crowd including PW3 to a place in Wariruta where he retrieved a phone Nokia 1100 at a place of charging. He then guided the crowd to a bush where he retrieved a handbag. The handbag was opened and all the items claimed stolen were found. They were produced in court and marked MFI P1 – 17. Also produced as an exhibit is PW1's long jeans trouser which she had worn at time of ordeal. The trouser was muddy.

In his defence, the appellant averred that he and PW1 were lovers but when he discovered that PW1 was married, the relationship became sour. He averred that PW1 had continued to visit him and on 31/10/09 when PW1 visited appellant, the latter slapped her and as she fled, she left her hand bag behind.

In seeking to determine the case, the trial Magistrate identified the issues for determination as:

a) Whether a robbery with violence took place and if so

b) Whether appellant was the assailant.

She entertained no doubt that the complainant had been attacked and robbed. According to her, it was evident from the evidence of PW2 that PW1 sustained injuries and had to be treated. Further exhibit P16, the long trouser that PW1 had allegedly worn on the material day, was muddy, an indication that there was a struggle during incident and PW1 had rolled on the ground. She also found that the items allegedly stolen from PWI were recovered.

The trial magistrate rejected the defence of appellant that they had been lovers with PW1 as not plausible. It was her view that if that had been the case nothing would have been better than to put the issue across to PW1 during cross-examination and not at the defence stage.

According to the trial court, the appellant did not clarify at all whether he ever saw PW3 on 3/11/09 yet this was the man who with other villagers was led by appellant to places where a phone of PW1 was recovered at a charging place and her handbag was recovered in a bush.

The court therefore found that although appellant was alone when incident occurred, he inflicted injuries upon PW1 and this is one of the ingredients of a robbery with violence case and as such, the evidence was overwhelmingly against appellant leading to a finding of guilt as charged and consequently a conviction under Section 215 of CPC.

The appellant through his counsel Mr. Maina has faulted the conviction and sentence on three main grounds:

a) That the trial magistrate erred in finding that the prosecution had proved its case beyond reasonable doubt.

b) That the trial magistrate erred in dismissing the appellant's defence yet it was probable and raised doubt in the prosecution's case.

c) That the death sentence was erroneous and an affront to the appellant's constitutional right to life and human dignity.

In arguing these grounds, Mr. Maina urged before us that the offence was not proved to the required standards. According to counsel, particulars of the offence were inconsistent with the evidence tendered. That is to say, the appellant was alleged to have jointly with others not before court robbed the complainant while armed with dangerous weapons, namely rungus and at or immediately after such robbery used personal violence on the complainant. In this regard counsel contended that the prosecution's evidence was that the complainant was attacked by one person. According to PW1, she was attacked by the appellant who hit her on the breast with a sugar cane and strangled her thereafter.

Mr. Maina further submitted that there was no eyewitness apart from the complainant. It was his contention that since the complainant alleged that she recounted the attack to the grandmother to the appellant, he ought to have been called as a witness.

Concerning the recovery of exhibits, counsel submitted that it was the words of PW3 against the appellant's that the latter was the one who led him to the places where the items were recovered. There were about 60 people alleged to have captured the appellant and none other than PW3 was called to testify. Counsel particularly questioned why the person who was in charge of the premises where the complainant's lost phone was found charging was not called as witness.

Regarding the injuries sustained by the complainant, counsel for the appellant submitted that there was inconsistency between these as recounted by the complainant and the P3 report and treatment notes produced in court. According to Counsel, whereas the complainant talked of being hit on the breast and strangled, no injuries were reported on the neck or breast. The P3 report and treatment notes talked of injuries at the back. It was argued that no explanation was given how the injury at the back came about.

Regarding the sentence meted out by the trial court, counsel submitted that, the judgment of the lower court was delivered after the promulgation of the new constitution which does not make death penalty as the only sentence.

Mr. Makunja for the state for his part supported the conviction and sentence and arguing that the charge and facts thereof were correct and that it was not a must that all the ingredients of the offence are particularized. According to counsel, the appellant was known to the complainant and it was him who led PW3 and others to places where the items were recovered. Counsel further submitted that the defence of relationship with the complainant was never put to her by the appellant during cross-examination hence an afterthought. Regarding the injuries, it was his submission that what the doctor captured need not tally with the injuries as recounted by the complainant. Concerning witnesses, counsel submitted that it was not the number of witness called that matter but the quality of the evidence hence according to him it was not necessary to call the appellant's grandmother and the person in whose premises the lost phone was found charging.

This being the first appellate court, we are duty bound to reassess evidence on record, re-evaluate it and make our own conclusions however warning ourselves that the trial court had the advantage of listening to witnesses and observing their demeanour.

PW1 (the complainant), testified in the relevant part as follows:

“...On 31. 10. 2009 around 5:00 pm I was in Karatina town buying a water tank. I found none. I started going towards Mahigaini. I alighted at Mahigaini and started walking. I found Wanjau who is the accused in the dock and he was eating sugarcane. He is someone I knew as he is from our area. He was seated. I left him. I started climbing towards Gatiko but I looked behind and saw him following me. He suddenly seized my left arm saying I stop. I told him to leave me alone. He then hit me with sugarcane on my breast and also hit me on my breasts with hands. I told him he would face consequences. He then seized by the neck and started strangling me. He then made me fall down and continued to strangle me...He then took my handbag which I had and he went away...I started screaming and the first person who came was the grandmother of the accused. I told her what happened.

In cross-examination by the accused she stated:

“...Where I was robbed people and vehicles pass through...The place is near your place and your grandparents were even in the vicinity...it was day time around 5:00 pm and one could see you clearly...it is your grandmother who came to my rescue...I know you as a fellow villager.”

From the foregoing, the evidence of the complainant which is the major plank on which the appellant's conviction was based is one of identification. As set out above, she stated that she knew the appellant and even other members of his family to wit his grandfather and grandmother. She was definite that it was the appellant who attacked her and made this fact known to his grandmother who was the first person to respond to her screams immediately after the attack. The time of the attack was around 5:00 pm when lighting conditions cannot be said have been poor. The eventual arrest of the appellant was therefore not out of trying to establishing who carried out the robbery and the attack, but how to arrest a suspected robber who had already been identified by the victim.

In the case ofRoria v Republic [1967] EA 583 it has been held:

“...subject to well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.”

The circumstances under which the attack and robbery from the complainant took place does not qualify this case as one where the court requires to test with greatest care the evidence of the complainant as to the identification of the appellant as her attacker. She was positive and clear in her mind as to who her attacker was and disclosed this to the first person she met almost immediately after the attack. She retained similar consistency when she reported the issue to the police. To this extent we are of the view that it is safe to rely on the complainant's evidence.

There is however the issue of the inconsistency between the injuries that the complainant alleged were inflicted on her by the appellant and those observed by PW2 who examined her almost three days after the attack. According to the complainant she was hit by the appellant on her breast with sugarcane the appellant had earlier been chewing and by his hand. The appellant then strangled her and made her fall down. Naturally, one would have expected the complainant to inform PW2 about the way she was attacked to enable him carry out a more comprehensive examination. There was nothing in that regard either in the evidence of the complainant or PW2. Besides, there is the issue of the weapon the appellant was alleged to be armed with at the point of attack. Whereas the complainant talks of a sugarcane, the charge sheet talks of a rungu. This lack of clarity and inconsistency over the weapon used and the injuries sustained by the complainant creates doubt over whether there was any weapon used during the stealing and if any violence was inflicted on the complainant during or immediately after such stealing

We are in no doubt that the items that were recovered with the help of the appellant were taken from the complainant, we are however doubtful about the circumstances under which they were taken. That is to say, from the evidence, we are not clear in our minds whether those circumstances constituted the offence of robbery as defined under section 295 of the Penal Code.

Under section 354(3)(a)(ii) of the CPC we are as an appellate court clothed with the power to alter the finding of a trial court and reduce or increase the sentence. In the light of what we have observed above, we are of the view that this is a proper case for us to exercise this discretion.

In that regard, we substitute the conviction for robbery with violence meted by the trial court with a conviction for the offence of stealing from the person contrary to section 279 of the Penal Code and sentence the appellant to 5 years imprisonment to run from the date of conviction.

Finally, there is the issue of the constitutionality of the death penalty in the light of the new constitution. According to the appellant the death sentence was erroneous and an affront to the appellant's constitutional right to life and human dignity. Mr. Maina for the appellant further submitted before us that under the new constitution death penalty is not mandatory.

As much as we have reached the conclusion that the appellant's conviction be reviewed from robbery with violence attracting death penalty to stealing from the person contrary to section 279 of the penal code, we wish to reiterate the decision of the Court of Appeal in the case of Godfrey Ngotho Mutiso v. R Criminal Appeal no. 17 of 2008 (Msa). In that case the Court stated:

“... we are persuaded and now so hold that section 204 of the Penal Code which provides for mandatory death sentence is antithetical to the constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial. We note that while the constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed. We declare that section 204 shall to that extent that it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the constitution, which we have said makes no such mandatory provision.”

Section 296(2) of the Penal Code provides that:

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

33. As the Court of Appeal declared of section 204 of the Penal Code in Ngotho's case above cited, we too declare of section 296(2) of the Penal Code that to the extent that it provides that the death penalty is the only sentence in respect of the crime of robbery with violence, it is inconsistent with the letter and spirit of the constitution, which we agree, makes no such mandatory provision. We however will not hesitate to add that death penalty ought to be still meted in appropriate cases taking into account for instance the circumstances of the offence, the manner of its commission and weapons used.

34. In conclusion we allow the appeal to the extent that the conviction for robbery with violence and the sentence to death of the appellant is hereby replaced with a conviction for the offence of stealing from the person contrary to section 279 of the Penal Code and sentence the appellant to 5 years imprisonment to run from the date of conviction.

35. It is so ordered.

Dated and delivered at Nyeri this 6th day of November 2013.

OUGO R.E

…..........................................................

JUDGE

ABUODHA N.J

…...........................................................

JUDGE

Delivered in open Court in the presence of......................... for the Appellant and.................................... for the Republic.