[2017] KEHC 4511 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA CRIMINAL APPEAL NO. 5 OF 2017

MOHAMED NOOR ALI ALIAS ANIS……………....……... 1ST APPELLANT

ABDISALAM MOHAMED…………………………………2ND APPELLANT

VS

REPUBLIC……………………………………………………RESPONDENT

JUDGEMENT

The two appellants herein were jointly charged in the magistrates court at Mandera with two counts of robbery with violence contrary to section 296 (2) of the Penal Code. The particulars of count1 were that on 14th September 2016 at Township location within Mandera East County in Mandera county within the Republic of Kenya jointly with another not before court being armed with dangerous weapons namely; knives and metal bars robbed Rashid Maalim Abdinoor his mobile phone make Samsung Doos valued at Ksh.11,800 money and cash Ksh.1,000 and a wallet containing his National Identity and ATM card for Equity Bank and at the time of such robbery harmed the said Rashid Malim Abdinoor.

The particulars of count 2 were that on the same day and place, jointly with another not before court being armed with dangerous weapons namely; knives and metal bars robbed Jibil Ibrahim of his mobile phone make Infinix valued at ksh.13,000 and money in cash Ksh.200 and immediately before such robbery threatened to use actual violence against the said Jibil Ibrahim.

Mohammed Noor Ali the 1st appellant, was also charged with an alternative count of handling stolen goods contrary to section 322 (1) and (2) of the Penal Code. The particulars of the offence were that on 17th September 2016 at Mandera Police Station report office in Mandera East Sub-county within Mandera County otherwise than in the cause of stealing dishonestly retained one mobile phone make Infinix having reason to believe same to be stolen property.

They denied all the charges. After a full trial, they were both convicted on the two main counts of robbery with violence. The magistrate found that the alternative count of handling stolen goods failed because of the conviction of the two main counts of robbery. The appellants were each sentenced to suffer death in count 1 and the sentence in count 2 was held in abeyance.

Dissatisfied with the decision of the trial court the appellants have come to this court on appeal. Initially both appellants filed their appeals in person. However, afterwards Mr. Nyaga advocate came and record for the 2nd appellant Abdisalam Mohamed and filed a supplementary petition of appeal.

Mr. Nyaga the advocate for the 2nd appellant relied on the supplementary petition of appeal.

The grounds of appeal of the 1st appellant Mohamed Noor Alias as Anis are as follows:

1. That no time was allowed by the magistrate for investigations to be conducted.

2. That the evidence abused by the prosecution witnesses was not adequate to prove the offences charged.

3. That there was conflicting evidence from the prosecution witnesses and the magistrate did not consider this.

4. That the magistrate was in a hurry and did not allow him to cross examine witnesses.

5. The sentence of death passed upon him was harsh and oppressive.

The 1st appellant also filed written submissions to the appeal. The grounds of appeal filed by Mr. Nyaga for the 2nd appellant are that-

1. The trial magistrate had erred in law and in fact in finding that identification of the 2nd appellant who was free from error and positive.

2. The trial magistrate erred in conducting the hearing in a language that 2nd appellant did not understand.

3. Trial magistrate erred in failing to consider the defence of the 2nd appellant contrary to the provisions of section 169 (1) of the Criminal Procedure Code.

4. The trial magistrate erred by failing to find that the evidence did not support the charge referred in count one.

5. The trial court erred by failing to find that there were material contradictions in the evidence.

6. The trial court erred in failing to find that the evidence produced was not sufficient to prove the case beyond all reasonable doubts.

At the hearing of the appeal, the 1st appellant relied on the written submission which he had filed. He added that all the witnesses for the prosecution were from one family and that they and the investigating officer were not able to answer the questions he put to them. I have perused and considered the said written submissions.

Mr. Nyaga Counsel for the 2nd appellant relied on several court cases. He abandoned the previous petition of appeal filed by the 2nd appellant in person. Counsel started by submitting that this being a first appeal, the court is bound to revaluate the evidence on record and come up with independent findings.

With regard to identification of the 2nd appellant, , counsel submitted that it was not positive, as the incident occurred at night in darkness at 7. 00 pm or thereafter. Counsel emphasized that this being a case of a single identifying witness the court should have critically considered the conditions for identification which were not conducive. Counsel submitted that with regard to count 1 the street lights referred to were not vividly described. With regard to a bulb from a nearby kiosk and a moon light were referred to. However, though PW2 referred to moonlight, PW6 said there was no moonlight. Therefore in counsel’s view, the identification of the 2nd appellant was doubtful and could have been mistaken.

Counsel also stated that PW4 the complainant in count 2 stated that he ran to Mandera Polytechnic and asked for help which meant that he lost sight of the assailant. According to counsel, this was clear from PW4 evidence that he led boys back towards the scene and on reaching Burakarai, the 2nd appellant came running. Counsel stated that PW4 did not give a description of the assailant to the boys. Thus counsel concluded that there was no identification or recognition of the 2nd appellant in count 2.

With regard to count 1, counsel submitted that though the complainant PW1 made an attempt to describe the assailants, he merely said 1st appellant had dark T-shirt and jeans and 2nd appellant wore dark T-shirt and jeans. According to counsel, such items of dress were common attire in Mandera and could not be a description that could positively identify the appellants.

Counsel relied on the case of JOHN MUREITHI NYAGA VS REPUBLIC (2014) eKLR. Counsel submitted also that the defence gave a plausible explanation in the sworn defence of the 2nd appellant on the circumstances of his arrest and what he was doing when he was arrested. He was arrested around 8. 00pm going back to his mother's house from his sister. Counsel submitted that the defence was unshaken, andrelied on the English case of R VS TURNBULL (1976) 3 ALLER 549 on identification as well as the case of MICHAEL NOMAN MBACHU VS REPUBLIC (2016) eKLR..

Counsel emphasized that PW4 and PW6 did not give exactly the same evidence with regard to moonlight, while PW1 said that he knew Abdisalam as a niece's friend which was a very casual description which did not amount to prior knowledge.

With regard to count 2, counsel submitted that though PW4 said that he lived in the same Bulla with the appellants, it was not clear when PW4 moved to that Bulla. According to counsel, that description was also very casual and the benefit of doubt should be given to the appellant.

With regard to language, counsel submitted that during taking of plea the language used in court was described as English translated to Kisomali. However during the trial the language used was not indicated and as such the 2nd appellant was not able to participate fully and cross examine witness or articulate his case. He was thus prejudiced because he did not understand the language used.

On failure of the trial court to consider the defence of the 2nd appellant, counsel referred to page 38 of the judgment where the court stated that DW1 did not know if the 2nd appellant committed the offence. According to counsel the evidence of the defence was not controverted but the court failed to analyze the case for the prosecution against the case for the defence as required under section 169 of the Criminal Procedure Code, and as a result the magistrate did not give reasons for disbelieving the defence of the 2nd appellant. Counsel relied on a publication entitled Essentials of Criminal Procedure by Justice Patrick Kiage.

Counsel also submitted that the evidence tendered in court did not support the allegations in count 1 that the assailants were armed with knives and metal bars. According to counsel, PW1 merely said that somebody moved an object and hit him without mentioning whether it was a knife or metal bar.

With regard to contradictions, counsel relied on a civil case of JOHN DESA VS SN AMIN, in which the court gave an example of material contradictions. In counsel’s view, in the present case there were material contradictions in the evidence of PW1 because he did not give a description of the assailants before the arrest though he stated that he identified them in the moonlight

Lastly, counsel argued that the appellants were prejudiced because they were charged with two counts of Capital Offences in the same charge sheet. As such they were embarrassed and could not properly defend themselves. Counsel stated that that was a misjoinder of counts in terms of section 135 of the Criminal Procedure Code (Cap.75) as the two alleged robberies were separate incidents one at Bulla Karai and the other near Jamia Mosque in Mandera. Counsel submitted that on such the conviction was rendered fatal, as it was not even easy to articulate the appeal.

Mr. Okemwa, learned Principal Prosecuting Counsel opposed the appeal. Counsel submitted that the prosecution was required to prove three elements of the offences of robbery with violence. Counsel submitted that PW1 who was a victim knew the appellants before. In addition PW2 stated that he was handed a mobile phone by the 1st appellant, which amounted to recent position.

According to counsel, PW4 also said that he was bitten and injured and mentioned the names of both the appellants. With regard to lighting, counsel relied on a case of VINCENT O. OMBETO VS REPUBLIC (2005) eKLR and stated that in the case of JOHN MURIITHI NYAGA VS REPUBLIC (2014) eKLR relied upon by counsel for the 2nd appellant, the court stated that evidence of a single witness is acceptable if corroborated by other evidence.

On language, the counsel submitted that the clerks who attended court were Alikheir and Ahmed and therefore Kisomali language must have been used, as the appellants fully participated in the trial and tendered their defence. Counsel relied on the case of GEORGE MBUGUA THIONGO VS REPUBLIC (2013) eKLR.

With regard to the contents of the judgment, counsel stated that judges and magistrates were human beings. According to counsel, the trial court was not required to record a demeanor of witnesses, and the magistrate actually gave a summary of the evidence for the prosecution and defence in the judgement and therefore complied with provisions of Section 169 of Criminal Procedure Code. However there was an error, according to counsel, it did not cause prejudice to the appellant.

On separate trials for the two capital charges, counsel submitted that in terms of Section 134(1) of a Criminal Procedure Code there was no prejudice occasioned to appellants hearing, the victims were attacked by the same gang and the items taken from them were found on the two appellants. Counsel relied on a case of NGOYA VS REPUBLIC Criminal Appeal No. 1136 of 1981 and submitted that in accordance with Article 159 (2) (d) of the Constitution of Kenya 2010, courts should not be unduly constrained by technicalities.

I have considered the submissions on both sides. I have perused the proceedings as well as the judgment.

This is a first appeal. As a first appellate court, I am required to re-evaluate all the evidence on record and come to my own independent conclusions and inferences. I have to bear in mind that I did not see the witnesses testify to determine their demeanor. See the case of OKENO VS REPUBLIC (1972) EA32 and the case of BANDYA VS R (1957) EA336.

The appellants have come on appeal on several grounds. In brief the prosecution evidence is that on 14th September, 2016 at 7. 30 pm at Jamia Mosque in Mandera PW1 Rashid Maalim the complainant in count 1 was walking home near the mosque when three people surrounded him. He knew two of them as Mohamed Noor Ali and Abdisalam Mohamed who were his neighbours. As he talked on a mobile phone, they told him to stop. He saw them in the security light from the mosque and street light from Mandera Polytechnic and Mandera Dintu Primary School.

The two asked whether he knew them and he answered yes.Whenupon Mohamed Ali caught him by the collar pressed and strangled him while Abdisalam removed and object from the waist of his trouser and hit him on the face. Abdisalam then hit him on the nose with his head and he fell on the ground unconscious. They then inspected his pockets and removed his walletwhich had the ID card and ATM card for Equity Bank as well as cash Ksh.1000 and phone. After they left, he proceeded to the school and took some boys who assisted him go home. He then proceeded for treatment and then to the police station where he found Abdsalaam in custody. When he went to follow up the matter in police station in 16th September, 2016 he found Mohamed Noor Ali.

On the same 14th September 2016 at 7. 00pm PW4 Jibril Ibrahim Mohamed the complainant in count 2 an employee of Kenya Power and Lighting Company, was heading home from work in Mandera town carrying his dinner. Near the cemetery, he noted three people walking behind him. These people stated that they were police officers and that there was a curfew in town and asked him where he was going. It was his evidence that he knew them as Abdisalam and Anis. There was also a 3rd person called Mohamed Batow.

It was his evidence that he lived in the same Bulla with Abdisalam and Anis and recognized them in the moonlight and security lights from a nearby kiosk. According to him, Abdisalam produced a knife and held it to his abdomen while the other two robbed him of his wallet and mobile phone. According to him, Abdsalam who is also called Anis took his mobile phone while the 3rd person whom he did not know took his wallet with and ID card and ATM Card. The assailants then went away but on discovering that they could not operate the telephone, they came back and asked for assistance to operate it and at that time he asked for his ID card and they gave it to him. He then ran to Mandera a Polytechnic and requested boys for assistance. On the way at Bulla Karai they met Abdisalam running and restrained him. Abdisalam then said that the two other assailants were at Laga and as he led them to that place, they found women who told them a teacher had been injured the same evening. Abdisalam was then escorted to the police station. The phone was recovered as the same was found in procession of PW2 Yumis Ali Abdi, a child aged 15 years who was given the phone by Anis the 1st appellant.

The appellants were thus arrested and charged with the offence. In their defence 1st appellant stated on oath that he was a footballer and that on 6th August, 2016 he was acquitted with robbery of violence. The complaint in that case was a brother to the complaint to the present case. At around 7. 00pm while sitting with Hassan Ajai who was selling bangia mobile phone was brought by children. There was an exchange of the said phone with bangi. He went to his home which was nearby and took water to go to the toilet when he was hit with a metal bar which broke his hand. He was also stabbed with a knife and people brought a phone and took him to the police station where he found a teacher who alleged that he had robbed him.

In his defence the 2nd appellant Abdisalam Mohamed stated that at 5. 00pm while working for his mother his telephone rang and he was told that his sister was sick he went there to see her and left her house at 8. 00 pm to go to his mother’s house and on the way near Bayan Academy, he heard people saying this is the one and they suddenly attacked him and he fell down and found himself in police station. He stated that he was framed.

He called a witness his sister Hodhan Mohamed Hussein who stated that his brother had visited her at 6. 00pm. When he left to go home she had that he had been arrested.

The first issue is with regard to the charges. The incidents were separate incidents and the appellants were also charged with two capital offences in the same trial. In terms of section 135 of the Criminal Procedure Code charges may be put together in the same charge sheet and information where the offences charged are founded on the same facts, or form part of a series of offences of the same or similar character. In the present case, though the offences were alleged to have taken place at different places they appear to have been a series of offence allegedly committed by the same persons. In my view therefore, the two charges could be put together.

Admittedly the appellants were laymen and were not represented but the magistrate did not fin d any reason for separate trials to be held. Having considered the facts and circumstances of this matter, I find no embarrassment caused to any of the appellants on being brought to court and tried for the two charges in the same trial.

The 2nd issue relates to the language used in court. I have perused the record. During the pre-trial the language is indicated to be English/Kisomali. In the trial however the language is not indicated. The clerk is however no doubt Somali from the name and none of the appellants raised any doubt that he did not know Somali. The appellants participated fully in the trial by cross examining witness. They also tendered their sworn defence and were cross examined. I find that thought the magistrate did not indicate the language used during the trial Somali interpretation was done otherwise the appellants couldn’t have participated in the trial. The mistake of the trial court not indicating the language used during the trial did not prejudice the appellants and was curable under Section 382 of the Criminal Procedure Code.

The 3rd issue related to identification. The time was between 7. 00 and 8. 00pm. There is no doubt that night had fallen and none of the witnesses claims to have looked at their watches to state the exact time of the day when the incidences occurred. However all witnesses agree that light was either from the moon or from electric lights which means that darkness had set in and it was thus at night.

The identification of the appellants was by single witnesses, PW1 for count 1 of robbery with violence and PW4 of count 2 of robbery with violence. It is a requirement that in cases of identification by a single witness in un favourable circumstances, there is need for other supporting evidence corroborate that evidence of a single witness, as mistakes of identification as recognition can be made even with respect to close friends or relatives – see RVS –TURNBULL (1996) ALL ER 549.

In the present case with regard to count one PW1 stated that he knew both appellants before . He knew the names of both appellants as they were neighbours. He saw them in the electric lights. After the incident he was assisted by some boys. However there is no evidence that he mentioned the names or the identity of any of the two appellants to the people who first came to his assistance. He went to hospital and was treated but there is no indication he mentions names of suspects. He merely found the people arrested and at the police station.

With regard to the 2nd count, PW4 also stated that he knew both the appellants before and that he was assisted by some boys. However there is no evidence that he mentioned any of the names of the appellants to these boys. The boys merely walked with him and found somebody whom PW4 knew running and this was the 2nd appellant.

The evidence on record is that a young man PW2 had a mobile phone which was the phone of PW4, allegedly given to him by the 1st appellant.

The identity of the mobile phone is not in doubt. However the question is, was it given to the young man by the 1st appellant? The circumstances under which the said mobile was said to have been given to the young man in my view is a highly suspect. It appears that after arrest then the issue of the mobile phone cropped up.

I find the evidence of identification and the connection of the appellants with the offences to be wanting and below the threshold required in criminal cases. I will give the benefit of doubts to the appellants. On that account they will be acquitted of the offences.

The last issue I want to deal with is compliance of the trial court with the provision of Section 169 of the Criminal Procedure Code regarding the judgment. Indeed the learned magistrate did not evaluate the evidence of the prosecution against that of the defence. After giving the summary of the evidence of prosecution witnesses and that of the defence , the magistrate did not weigh the prosecution evidence against the defence and give reasons for misbelieving one against the other. The learned magistrate merely stated as follows:-

“In the end I find the evidence against both accused persons is direct consistent and overwhelming. I reject the defence offered by the accused persons for reasons contained hereinabove and I proceed to convict both accused persons on the two counts of robbery with violence contrary to Section 296 (2) of the Penal Code and Section 215 Criminal Procedure code”.

Thought the magistrate said that reasons had been given above for rejecting the defence offered, no such reasons were actually given in the judgment. Again on this mistake of the trial court, I give the benefits to the appellants and find that they suffered prejudice.

For the above reasons I allow the appeals of the two appellants. I quash the conviction for the offences of robbery with violence and set aside the sentence of death in both. I order that each of the two appellants be released forthwith unless otherwise lawfully held.

Dated and delivered at Garissa on 18th July, 2017.

GEORGE DULU

JUDGE