[2018] KEHC 3440 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NUMBER 82 OF 2017

BETWEEN

MOLU GURACHA BOBE ......................... APPELLANT

VERSUS

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

(Being an appeal against conviction and sentence delivered by Hon. S. M. S Soita Chief Magistrate in Maua Chief Magistrate’s Court Criminal Case number 30 of 2016)

CORAM: LADY JUSTICE R. SITATI

JUDGMENT

Introduction

1. On 30th May, 2016, the appellant was arraigned before the Chief Magistrate’s Court at Maua on one count of Robbery with Violence Contrary to section 296(2) as read with Section 295 of the Penal Code. The particulars of the charge are that on the 24th day of May, 2016 at around 2. 00am, at Duse area in Garbatulla sub-County within Isiolo County, the appellant jointly with others not before court, while armed with dangerous weapons, namely two rifles make AK 47 and a rungu, robbed IBRAHIM ISSAK HUSSEN of kshs.35,000/-, a knife and a torch and at or immediately before or immediately after the time of such robbery threatened to shoot him [IBRAHIM ISSAK HUSSEIN] dead if he dares scream.

2. The appellant pleaded not guilty to the charge, thereby forcing the prosecution to marshall evidence in support of the charge against the appellant. The prosecution called five (5) witnesses. PW1 was the complainant, Ibrahim Issak Hussein while Samuel Kilonzo Kiema a neighbour of Ibrahim Issack Hussein testified as PW2. PW3 was Wario Wako Guracha and Daud Halake testified as PW4. The last witness for the prosecution was number 107798 PC Fredrick Baraza of CID, Garbatulla.

3. The appellant who testified as DW1, was the only witness for the defense. He gave sworn evidence.

The Prosecution Case

4. At about 1. 00am on 24th May, 2016, Samuel Kilonzo Kiema, PW2 (Samwel) was outside keeping vigil at his house due to insecurity in the area. Samuel’s home was about 40 metres away from the complainant’s home. While he was so engaged on high alert, Samwel walked to the fence to answer a call of nature when he saw two persons standing near the fence. He flashed his torch at them and noticed that one of the two persons was the appellant who was well known to him. As the appellant was well known to Samuel, and Samuel believing that all was well, he did not feel any cause for alarm. When Samuel shone his torch at the two people, he noticed that the appellant was wearing a yellow T-shirt. Samuel could not tell the colour of the appellant’s trouser/other clothes (if any) because the lower part of the appellant’s body was not visible because of the fence. Samuel then went back to his house and slept soundly.

5. On that same night at about the same hour, Wario Wako Guracha, PW4 (Wario) was walking to his home after arriving from a trip of prospecting for precious stones. Wario was in the company of Mohammed Dunti (not called as a witness). When they got near the shop of one Kala, they met a group of five persons. One of the five persons was armed with a firearm while another of them had a bakora. The meeting point was about 50 metres from Warios house. Of the five people whom Wario and his friend Dunti met, one was the appellant who was dressed in a yellow T-shirt and a black trouser. Appellant was well known to Wario for about three months. According to Wario, there was bright moonlight and he could see one of the five persons was armed with a firearm while the appellant carried a bakora. There was no exchange of speech between the two groups of people as they passed each other.

6. As soon as Wario entered his house he heard a loud bhang without any accompanying scream(s). After a short while, Wario heard many people talking. He did not think that there was anything amiss but he still went out of his house to find out what was happening.

7. At about 2. 00am, on the same 24th May, 2016, Ibrahim Issak Hussein, PW1(Ibrahim) was asleep in his house when he heard a knock at the door of his grass thatched and mud walled house. The door fell inside, and was followed by the entry of two persons. One of the two people was armed with an AK 47 rifle while the second man was armed with a bakora. The people also had a torch. The AK 47 rifle was put on Ibrahim’s head with orders that he should continue lying down. The second man who had a bakora then asked Ibrahim for money but he told them he did not have any money. While the man who was armed with a firearm stood guard over Ibrahim, the man who had a bakora pulled the mattress on which Ibrahim was lying and out came kshs.8,000/- in coins. He took the money. The same person went to the spare mattress which had 27,000/- stashed in it and took it. The man carrying the bakora had a bright torch with him and he shone it around as he ransacked the mattresses for money in the small room.

8. During that time, Ibrahim was able to recognize the appellant who was one of his customers. The appellant was wearing a yellow T-shirt. Ibrahim could not identify the second man who had the AK 47 rifle, but it was this man who told Ibrahim to remove the money quickly.

9. After the robbers left, Ibrahim ran out and informed the Assistant Chief Duse Sub-Location about the incident. The Assistant Chief, Daud Halake accompanied Ibrahim back to his (Ibrahim’s) house and the two together with Wario pursued the robbers following footmarks. Before they left, Daud observed Ibrahim’s house and noticed that things in the house were strewn all over. The search for the robbers resumed at daybreak. The footprints led them to a Manyatta belonging to Golo Duba in Kula Mawe. The appellant who hailed from Bibi-Duse was found in that place in Kula Mawe. Daud later learnt that the appellant had gone to Kula Mawe by motorbike, but Daud could not say why the appellant was in that place.

10. According to Daud, Ibrahim told him during the night after they gave up their first pursuit of the attackers that the appellant was one of the people who had mounted the robbery against him (Ibrahim).

11. The report of the robbery was made to Garbatulla CID office on 26th May, 2016. In the afternoon of that same day, number 107798 PC Fredrick Baraza (PC Baraza) joined the party which was pursuing the robbers. At Duse, the appellant was found chewing miraa. Once Daud identified the appellant Baraza arrested the appellant and escorted him to Garbatulla Police Station. On 28th May, 2016, PC Baraza and others visited the scene from where they recovered a rungu as the one the appellant had been carrying on the night of the attack. The rungu (bakora) was produced as Pexhibit 1. The stolen money was not recovered.

The Defense Case

12. At the close of the prosecution case, the trial court found that the prosecution had established a prima facie case requiring the appellant to be put on his defense. The appellant gave sworn evidence in which he denied committing the alleged offence. He stated that he normally resides at Duse but some three days before the alleged incident he went to attend to a patient with a mental problem. It was during that time that he learnt about the robbery incident. The chief of the area called him to take food to a team that was pursuing the robbers. He undertook the journey on a motor bike. He returned to Duse thereafter but he was arrested and handcuffed. He added that he had a grudge with Daud and that is why Daud mentioned him. He also testified that he had a grudge with Ibrahim over is (appellant’s) wife. The appellant did not call any witnesses.

The Duty of this Court

13. This is the first appellate court and in that capacity it is under a duty to deal with issues of both law and fact as it reconsiders and evaluates the evidence afresh. This court is therefore aware that on this first appeal it is under a duty to ensure the appellant’s case is re-heard, only remembering that it does not have the same opportunity the trial court had of seeing and hearing the witnesses. For this proposition generally see Tysons George Ngowa versus Republic Court of Appeal at Malindi [2017]eKLR and Martin Nyongesa Wanyonyi versus Republic [2015]eKLR.This court can only interfere with the trial court’s findings if it is clear that the trial court either misapprehended the evidence or applied wrong principles in reaching its conclusions. See Okeno versus Republic [1972] EA 32.

The Appeal

14. Being dissatisfied with the whole of the judgment of the learned trial magistrate, the appellant filed this appeal which is premised on the following amended grounds of appeal:-

1. That, the learned trial magistrate erred in both law and facts by failing to note that the surrounding circumstances in this instant matter were not favourable for a positive identification against the appellant without possibility of error.

2. That the learned trial magistrate erred in both law and facts by failing to note that in respect of justice there was a need for an identification parade.

3. That the learned trial magistrate erred in both law and facts by failing to note that the descriptions given by the witnesses were not cogent to prove that the appellant was the culprit of the alleged ordeal.

4. That the learned trial magistrate erred in both law and facts by acting on paradoxical testimonies tendered by the witnesses.

5. That the appellant’s defense was rejected without giving cogent reasons.

The Submissions

15. At the hearing of the appeal, the appellant relied on his written submissions which are on record, having been filed together with the amended grounds of appeal. In the highlights, the appellant submitted that the circumstances under which he is said to have been identified as one of the robbers were difficult and not error free as there was not enough lighting at the scene.

16. The appellant also submitted that if indeed, Ibrahim knew him as one of his (Ibrahim’s) customer then how was it that Ibrahim did not recognize the appellant’s voice.

17. Prosecution counsel, Mr. Kiarie opposed the appeal on behalf of the respondent. Regarding grounds 1, 2 and 3 of the amended petition counsel submitted that the identification of the appellant was safe and free from error as he was known to Ibrahim. Counsel also submitted that the appellant and his accomplice spent a considerable period of time during the robbery thereby giving Ibrahim adequate opportunity to observe them. Counsel also submitted that there was sufficient light emanating from the appellant’s torch to enable Ibrahim not only to recognize the appellant but also to note that the appellant was dressed in a yellow T-shirt.

18. It was the respondents’ further submission that the fact of the appellant having been dressed in a yellow T-shirt was corroborated by both Samuel and Wario who both testified they saw the appellant in the vicinity of the robbery dressed in a yellow T-shirt less than an hour before the robbery took place. For the above propositions, prosecution counsel placed reliance on two authorities. Charles Amboko Anemba versus Republic Kakamega High Court Criminal appeal number 51 of 2014[2015]eKLR and Mohamed Ali versus Republic Mombasa High Court Criminal appeal number 2 of 2010 [2013]eKLR.

Issues for Determination

19. Section 296(2) of the Penal Code defines what amounts to a felony of robbery with violence offence in the following definition:-

296(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

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

20. Section 295 of the Penal Code defines the offence of robbery in the following terms:-

“295 Any person who steals anything and, at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”

21. So, from the definition in section 295(supra), the offence of robbery is committed when – a person steals something and

- At or immediately before or immediately after the time of stealing the thing, the person uses or threatens to use actual violence to any person or property.

- The actual or threatened violence is intended to obtain or retain the thing stolen or to prevent or overcome resistance to the thing stolen or retained.

22. Under section 296(2)the robbery defined under section 295becomes a violent robbery if –

a) The offender is armed with any dangerous or offensive weapon or instrument or

b) The offender is in company with one or more other person or persons; or

c) 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.”

23. It is to be noted that the offence of robbery with violence will have been proved beyond reasonable doubt if the prosecution proves any of the three ingredients under section 296(2) of the Penal Code (above).

Analysis and Determination

24. I am alive to the fact that the alleged incident took place in the wee hours of the morning, and that the question of identification is at the centre of the prosecution case; and especially when the identifying witness is only one. In this regard, I am guided by the holding in the case of Maitanyi versus Republic [1986] KLR where the Court of Appeal stated the following: - “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 the greatest care the evidence of a single witness respecting identification………”,especially where the evidence of recognition is challenged by the accused.

25. There is also the distinction between identification and recognition of an assailant. The case of R – versus -Turnbull and others [1976] 3All EL 549, cited with approval by Sitati and Mrima JJ in Charles Amboko versus Republic(above) is a case in point. In the said case, the court held-

“The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way…….? Had the witness ever seen the accused before? How often? If only occasionally, had he had special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Is there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance?.....Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

26. In the instant case, I am satisfied that the identification of the appellant by way of recognition was beyond reproach. Ibrahim stated very clearly that after the door to his one roomed house was kicked, it fell inside and two people, one armed with an AK 47 rifle and a second man armed with a bakora entered. The AK47 was put on his head with a warning not to move as the two also asked him for money. According to Ibrahim, it was the appellant who pulled the mattress from under Ibrahim and kshs.8000/- in coins fell out. It was also Ibrahim’s evidence that the appellant had a torch which was bright and that Ibrahim was able to identify the appellant whom he knew before, as the appellant shone his torch around the small room looking for more money in the house. Further Ibrahim stated that he knew the appellant and recognized him on that night as one of his (Ibrahim’s) customers. The appellant was dressed in a yellow T-shirt. It was also Ibrahim’s testimony that after taking money from both mattresses the intruders asked him for the key to his (Ibrahim’s) bag which he gave them. All the while, it was the appellant carrying out these assignments as the man with the AK 47 rifle kept watch over Ibrahim. During cross examination by the appellant, Ibrahim stated the following regarding the intensity of light in the room: “you had a torch of two cells and the room is small and there was enough light ………..you had a bakora.” In re-examination, Ibrahim reiterated his earlier testimony that he clearly recognized the appellant during the robbery.

27. There is also evidence on record that after the first attempt to catch up with the robbers, Ibrahim told Halake that he (Ibrahim) had recognized the appellant during the robbery. In my considered view, Ibrahim’s information to Malake was a first report in which Ibrahim mentioned the appellant as having been one of two robbers.

28. The clothing which the appellant wore on the night of the robbery, namely a yellow T-shirt was also confirmed by Samuel who saw the appellant whom he said was well known to him dressed in a yellow-shirt. Samuel testified that he flashed his torch at the two people standing at the fence and recognized the appellant. Wario also confirmed during his testimony that a little while before he heard a loud noise he had met the appellant in the company of four other persons. Wario said he recognized the appellant whom he had known for three months and that the appellant was dressed in a black trouser and a yellow T-shirt. There was such consistency about the appellant being dressed in a yellow T-shirt that I have no reason to doubt such evidence.

29. From all the above evidence I find no room for mistaken identity of the appellant. He was known to Ibrahim and together with the other man who was armed with an AK 47 rifle, they spent considerable time in Ibrahim’s house and within close proximity. There was sufficient light from the torch which he kept flashing about for Ibrahim to recognize him.

30. In light of the evidence above stated, the alibi defense of the appellant has not dislodged the prosecution’s case in any material particular. I am satisfied that the appellant was one of the five people who robbed Ibrahim on the night of 24th May, 2016.

31. The next issue for determination is whether the offence of robbery with violence was proved. There is no doubt that the offence as defined under section 296(2) of the Penal Code was proved. I am satisfied that the prosecution proved all the ingredients of the offence though proof of just one was sufficient. The appellant was in the company of another who was armed with AK47 rifle and immediately before the robbery, the AK 47 rifle was put on Ibrahim’s head, a clear threat that if Ibrahim did anything contrary to what the robbers demanded, they would use the gun against him.

32. The above being the findings of this honourable court, I find and hold that the appellant’s grounds of appeal have no merit. I have in particular carefully reconsidered and evaluated the appellant’s defense of alibi and as stated earlier the said defense did not dislodge the strong evidence put up by the prosecution against the appellant.

33. Before I conclude this judgment, there is another issue that needs consideration and that is whether the court should allow the death sentence imposed upon the appellant to stand. In the recent past, both the Supreme Court of Kenya and the Court of Appeal have made pronouncements on the constitutionality of sections 204, 296(2) and 297(2) of the Penal code all of which provide in mandatory terms that a conviction under any of the above cited provisions carries with it a death penalty. In the case of Francis Karioko Muruatetu and another versus Republic Petition number 15 of 2015consolidated withPetition number 16 of 2015, the Muruatetu case, the Supreme Court at paragraph 48 of its judgment said:-

“[48]Section 204 of the Penal code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a court listens to mitigating circumstances but has nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Article 25 of the Constitution, an absolute right.”

34. The Supreme Court went further and stated at paragraph 52 of its judgment, in referring to the case of Godfrey Ngoho Mutiso versus Republic – Criminal Appeal No. 17 of 2008 stated as follows:-

“[52]We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed.”

35. It is thus clear from the above that courts dealing with murder or robbery with violence cases should no longer feel their hands are tied behind their backs when it comes to imposing appropriate sentences. It is further clear from a further reading of the judgment of the Supreme Court in the Muruatetu Case (above) that the death penalty “is still applicable as a discretionary maximum punishment.”

36. Another relevant decision with regard to the constitutionality and applicability of the mandatory death sentence is the case of William Okungu Kittiny versus Republic – Criminal Appeal number 56 of 2013 – Court of Appeal at Kisumu [2018]eKLR in which the Court of Appeal held, inter alia, that

“The decision of the Supreme Court …………..does not prohibit courts below it from ordering sentence re-hearing in a matter pending before those courts. By Article 163(7) of the constitution. The decision of the Supreme Court has immediate and binding effect on all other courts. The decision of the Supreme Court opened the door for review of death sentences even in finalized cases.”

37. The above being the position, which position I fully subscribe to, I now make the following final orders in this appeal:-

1. The appeal herein being found devoid of any merit be and is hereby dismissed in its entirety.

2. I hereby quash the death sentence imposed upon the appellant.

3. I now invite the appellant to make his mitigation before imposing the final sentence.

It is so ordered.

Judgment written and signed at Kapenguria

R. N. SITATI

JUDGE

Judgment delivered, dated and countersigned at Meru on this 25th day of July, 2018.

ALFRED MABEYA

JUDGE