[2018] KEHC 6666 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL APPEAL NO.69 OF 2017

MOHAMED OSMAN HASSAN..................APPELLANT

VERSUS

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

(From the conviction and sentence in Garissa Chief Magistrate’s Court

Criminal Case No. 233 of 2013 by Hon. H. Ndungu (CM)

JUDGEMENT

1. The appellant was charged in the Chief Magistrate’s Court at Garissa with two counts. Count 1 was attempted robbery contrary to section 297 (2) of the Penal Code. The particulars of the offence were that on 23rd February, 2013 at Ifo 2 Refugee Camp in Dadaab District within Garissa County jointly with others not before court, while armed with dangerous weapons namely pangas and a toy gun, attempted to rob Abshil Hassan Ali and at or immediately before or immediately after the time of the attempted robbery threatened to use actual violence to the said Abshil Hassan Ali.

2. Count 2 was for assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of the offence were that on the 23rd February 2013 at Ifo 2 Refugee Camp in Dadaab within Garissa County assaulted Abdi Hassan Elmi thereby causing him actual bodily harm.

3. He denied both charges. After a full trial he was convicted on both counts. He was sentenced to death for attempted robbery, while the sentence in the charge of assault was held in abeyance.

4. Dissatisfied with the decision of the trial court, the appellant has come to this court on appeal which he filed on 23rd December, 2013. The appeal was not however heard for a long time as the trial court file was said to have been misplaced in the Garissa Court Registry.

5. Before the appeal was heard, and with the permission of this court, the appellant filed an amended petition of appeal as well as written submissions, which he relied upon.

6. The grounds of appeal are as follows:

(1) The learned magistrate erred in law and fact in convicting him without considering that the prosecution failed to discharge the burden of proof to the required standard.

(2) The trial magistrate erred in law and fact in convicting him without considering that the ingredients of attempted robbery were not established.

(3) The offence of attempted robbery under the law with which he was charged provided for a sentence of seven (7) years imprisonment.

(4) The trial magistrate erred in failing to consider that no first report on his identity was made.

(5) The identification of the assailant was poor leading to his arrest on mistaken identity.

(6) The trial magistrate erred in law and fact in allowing evidence of PW1 after he had revealed that he had conspired to tell lies in court.

(7) That the appellant was innocent and was merely arrested on mistaken identity without any incriminating evidence.

(8) The language used in court for interpretation was English and Kiswahili while he was a Somali.

7. At the hearing of the appeal, the appellant relied on his written submissions and elected to make no oral submissions. I have perused and considered the written submissions of the appellant.

8. The Principal Prosecuting Counsel Mr. Okemwa in response submitted that the prosecution called five (5) witnesses and that section 297 (2) of the Penal Code under which the appellant was charged imposed a death penalty.

9. Counsel submitted that initially the complainant in Count 1 PW1 attempted to give false evidence in court and he had to be declared a hostile witness and remanded in custody for some days before he volunteered to give evidence. Counsel said however that PW1 stated that he recognized the appellant by voice as he was a neighbour, and relied on the case of Karani v Republic [1984] KLR 290 in which the Court of Appeal stated that, “identification by voice nearly always amounts to identification by recognition.”

10. Counsel submitted further that PW2 responded to screams from the wife of PW1 and came to the scene and was attacked by the appellant, which was the basis of the charge of assault causing actual bodily harm. Counsel concluded by submitting that the appellant defence was an afterthought.

11. In response to the Principal Prosecuting Counsel’s submission the appellant stated that he was held in remand for seven months and that the person who had a case against him was jailed and initially said he did not know him but later stated that he knew him. He also said he did not know PW1 and merely saw him at the police station and later in court.

12. This being a first appeal, I am required to evaluate the evidence on record afresh and come to my own conclusions and inferences. I have to bear in mind that I did not have the opportunity to see witnesses testify in order to determine their demeanour. See the case of Okeno v Republic [1972] E.A 32.

13. I have evaluated afresh all the evidence on record. I have also perused the judgement of the trial court.

14. PW1 Abshil Hassan Ali was the alleged victim of Count 1 of attempted robbery. He was declared to be a hostile witness and remanded in custody for seven days before he testified. The incident occurred at night and, according to him, he identified the appellant who was his neighbour through his voice as one of the people who attacked him that early morning. He stated that a toy gun was later found near his house having been left by the assailants.

15. The fact that PW1 was declared a hostile witness in my view, greatly diminished the value of his evidence. PW2 Abdi Hassan Elmi who was attracted by screams of the wife of PW1 and went to the scene found two people struggling and tried to separate them, but did not say that he recognized or identified any of the assailants. The person who was struggling with PW1 managed to escape after another person approached them armed with a panga.

16. Though I am aware that a fact may be proved by the testimony of a single witness as stated in the case of Roria v Republic [1967] E.A 583, it is also trite that there is need for testing with the greatest care the correctness of identification by a single witness especially when the circumstances are not favourable for positive identification.

17. PW1 said that he identified the appellant through his voice that night and that he was a neighbour. However, he did not give the words uttered by the appellant which made him believe that it was the appellant’s voice. Secondly, there is no evidence that PW1 gave anybody a description of that neightbour before the appellant was arrested. Thirdly, the appellant was arrested after footsteps were followed allegedly to his house or tent, which meant that no particular neighbour identified by PW1 was sought. Fourthly, the appellant was arrested in the absence of PW1 but no identification parade was held to confirm his identity. The appellant also said in his defence that he saw PW1 firstly at the police station and in court, which is probably true.

18. Taking all the above factors into consideration, I am of the view that the identification of the appellant by PW1 as one of the assailants was not without the possibility of a mistake. As such in my view the conviction of the appellant by the trial court for the offence of attempted robbery was a mistake and has to be quashed.

19. I now turn to the conviction for the charge of assault causing actual bodily harm. The complainant in that charge was Abdi Hassan Elmi PW2. Though the Principal Prosecuting Counsel said in submissions that he was injured at the scene of the alleged attempted robbery, that was not the evidence of PW2. According to PW2 at the scene of attempted robbery, he tried to separate PW1 and another person who were struggling when a third person emerged with a panga and pushed him and the two assailants escaped. They then stayed at the scene till morning and followed footsteps which led them to a house in the neighbourhood, where they found the appellant standing outside his tent. PW2 did not know the appellant but because he was identified by other people, who did not testify in court, they told the appellant to stand still there, when other two people emerged from the house and one of them cut him with a panga, and then escaped.

20. It is thus clear to me from the above evidence that the injury caused on PW2 which was described as “harm” in the P3 Form, was not caused by the appellant but by another. Therefore even if PW2 was injured by someone, that assault was not caused by the appellant and therefore it was wrong for the learned magistrate to have convicted him for that offence.

21. As such, with the evidence on record, I find that the prosecution failed to prove any of the two charges leveled against the appellant. He should thus have not been convicted and sentenced by the trial court. Consequently, I will allow the appeal and quash convictions and set aside the sentence imposed.

22. Consequently, and for the above reasons, I allow the appeal, quash the convictions on all counts and set aside the sentence imposed by the trial court. I order that the appellant be set at liberty unless otherwise lawfully held.

Dated, Signed and Delivered at Garissa this 9th May, 2018.

......................

George Dulu

JUDGE