[2017] KEHC 2328 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 110 OF 2016

MOSES GITHINJI MBAYA…….........…….APPELLANT

VERSUS

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

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 111 OF 2016

CHARLES NG’ORUA BENJAMIN….....…APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in Nanyuki Chief Magistrate’s Court Criminal Case No. 1320 of 2015 by Hon. W. J. Gichimu Principal Magistrate on 11th November 2016)

JUDGMENT

1. MOSES GITHINJI MBAYA (Moses) and CHARLES NGORUA BENJAMIN (Charles) were charged and convicted before the Chief Magistrate’s Court with 2 counts of robbery with violence contrary to section 296(2) of the Penal Code. They were sentenced to suffer death on the first count while the sentence of the second count was held in abeyance. They have filed these appeals against their conviction and sentence.

2. This court being the first appellant court has a duty as was stated in the case NYANDO MUKUTA MWAMBANGA V REPUBLIC (2008) eKLR where it was held:-

“This court as the first appellate court has a duty to re-appraise the evidence and come to its independent finding. In doing so we have to appreciate that we do not have the advantage enjoyed by the trial court of seeing and hearing the witnesses and have to make due allowance for that –SOKI V REPUBLIC (2004) 2 KLR 21; KIMEU V REPUBLIC (2002) 1 KLR 756. Moreover, we are guided by the principle that the first appellate court should not interfere with the findings of the trial court which were based on the credibility of witnesses unless no reasonable tribunal could make such findings, or it was shown that the findings of the trial court are erroneous in law (REPUBLIC V OYIER (1985) 2 KLR 353; BURN V REPUBLIC (2005) 2 KLR 533).”

3. The first count of robbery with violence relates to the theft and violence against Aron Kinoti (Aron) the first complainant. The second count relates to theft and violence against James Mugambi (James).

4. Aron and James were employed by Caroline Makena Mutwiri at her bar called Daki bar in Timau town. Both Aron and James knew the appellant Moses and Charles. They knew them by virtue of being their customer at that bar. Aron said that he had known Moses for 3 months prior to the robbery. He said that he knew him by the name Dennis. James also knew Moses by the name of Dennis. Both Aron and James knew Charles. They said they knew him for six months. That he was a regular attendant at their bar. They knew him by his nickname ‘Sikwekwe.’

5. On 4th December 2015 at 2. 00 am – 2. 30 am Aron and James were sleeping together in their house which was next to the bar. They heard a commotion in the bar. As they went out to inquire they met up with Charles who as stated before they knew him by his nick name ‘Sikwekwe’. Charles ran away. Aron and James said that there was security light at the door at the corridor and also outside the other shops. Aron said that Charles before running away faced them and that is how he was able to identify him. This is what James stated in evidence about his identification of Charles:-

“We met two men who ran away. One of them looked at me and I identified him. There was security light at the scene which enabled me to see the suspect. He is known as Sikwekwe by nickname. ………. there was light in the bar.”

Later on being cross examined James stated in respect to his identification of Charles as follows:-

“I recognised you when you turned and looked at me before you ran away. There is an electric bulb at the scene. It helped me to recognise you.”

6. When Charles and another person ran away Aron and James noticed that the timber structure of the bar had a hole. A piece of timber had been removed. Aron and James opened the bar door and met up with the first appellant Moses. There was electric bulb in the bar which was on. They both saw Moses carrying beer which was tied with a yellow t-shirt. James who entered the bar first was stabbed by Moses. He screamed and Aron tried to rescue him. Aron too was hit by Moses with a timber. Both Aron and James screamed which screams attracted neighbours. These neighbours assisted them to arrest Moses. It was then that they noted that there was a black leather jacket inside the bar which they knew used to be worn by Charles every evening when he went to their bar.

7. When the trial court put Moses and Charles to their defence they opted to give their defence under oath.

8. Moses stated in his defence that at the time of the incident he was in the company of a lady called Mwendwa with whom he had had a come we stay relationship for one month. In the night in question he and Aron had a fight over this lady. He said that they were both drunk. But because he Moses was seriously injured both Aron and James framed the charges against him of robbery with violence. Moses denied being in possession of the knife.

9. Charles in his defence stated that on the 4th of December 2016 he was asleep alone at home. He denied committing the offence. He said that both Aron and James failed to report to the police that they knew him by his nickname ‘Sikweke’. On being cross examined Charles said that although he was married with nine children he lived alone.

10. The learned trial magistrate was satisfied that the offence of robbery with violence was proved by the prosecution. He found that the prosecution had proved theft, had proved that the robbers were more than one and that they were armed with a knife.

ANALYSIS AND DETERMINATION

11. In the case SAMSON NYANDIKA ORWERWE V REPUBLIC [2014] eKLR as follows:

“In Oluoch V Republic [1985] KLR 549 this court set out the ingredients of robbery with violence. The court rendered itself in the following manner:-

“the ingredients of the offence of robbery under section 296(1) of the Penal Code are:-

a. Stealing anything and

b. At or immediately before or immediately after the time of stealing, in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”

22. This has been reaffirmed by this court on several occasions, such as in Daniel Muthomi M’Arimi v Republic [2013] eKLR where the court stated that proof of any one of the three elements of the offence of robbery with violence would be enough to sustain a conviction under section 296(2) of the Penal Code.”

12. As correctly observed by the trial magistrate theft of the beer from the Daki bar was proved by the complainants who said that they found Moses holding the beer when they entered the bar. The prosecution also proved that immediately after stealing Moses used actual violence against Aron and James.

13. The appellants have in their written submissions raised the following grounds of appeal:-

That the first report to the police failed to give the description;

That in respect to Charles the prosecution failed to prove that he stole or that he used violence;

That the trial court wrongly rejected their defences;

That the charge sheet was defective for having failed to show in the particulars that violence was used.

14. On the first ground it needs to be appreciated that Moses was arrested in the act of stealing beer from the bar and on being arrested was taken to the police station. In respect to Charles he was seen at the scene by both Aron and James before he ran away. Both Aron and James reported to the police that they saw ‘Sikwekwe’ the nickname of Charles at the scene of robbery. Aron stated in his evidence that the name ‘Sikwekwe’ was the name recorded at the police occurrence book (OB) as number 24 of 4th December 2015. It follows therefore that ground of appeal has no merit.

15. Charles on the second ground of appeal identified above argued that the prosecution failed to prove that he stole or that he used violence.

16. In this court’s view the prosecution proved the ingredient of robbery with violence. Charles was placed at the scene where the robbery took place. With that in mind it should be noted that there was sufficient light at the scene and that Charles faced both Aron and James before fleeing. They were therefore able to identify him as a person they previously knew. This was not a case of a single identifying witness. It was identification by 2 people who know him well. Bearing in mind the provisions of section 21 of the Penal Code Moses and Charles were joint offenders. The section provides as follows:-

“21. Joint offenders in prosecution of common purposeWhen two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

17. It would be seen that the evidence adduced by the prosecution witnesses show that of Moses and Charles are deemed as having jointly committed the offence of robbery with violence. The theft of beer by Moses and the violence he meted out on the two complainants by virtue of section 21 is deemed to have been jointly committed by both of them. The second ground of appeal is therefore rejected.

18. The third ground the appellants faulted the trial court for what they alleged as its failure to consider their defences.

19. To the contrary the trial court did consider the appellants’ defences. In respect to Moses the trial court noted that he did not deny being at the scene but that he attributed his charges to the fight that alleged took place between him and Aron over a woman. The trial court on considering that defence however found that the prosecution’s evidence was consistent and proved that Moses was one of the robbers. The trial court found that the evidence of the complainant that the timber had been removed from the bar in order to gain access was corroborated by the police office PC Dickson Mugambi PW 5 who visited the scene. The trial court also found that the prosecution indeed proved that both the appellants were seen and recognised at the scene. Both Aron and James knew Charles by his nickname ‘Sikwekwe’. PW 5 the police officer confirmed that that was the name the complainants recorded in the OB book at the police station as no. 24 of 4/12/2015. On that ground the court discounted Charles’ defence. There being no reason to set aside that finding by the trial court, that ground of appeal is rejected.

20. The argument of the appellants on the next ground of appeal that the charge was defective is not at all supported by the particulars of the charge. The particulars of the charge show that the appellant stole 72 bottles of beer and at the time of stealing used actual violence against Aron and James. The injuries suffered by Aron and James were noted by Kennedy Kithure the clinical officer at Nanyuki Teaching and Referral Hospital. That clinical officer on examining Aron on 4th December 2015 found that he had bruises on the chest and tenderness and swelling on the lower limb. In regard to James he found that he had blood stained clothing. James was found to have a deep cut wound on the right cheek.

21. Bearing the prosecution’s evidence on the whole the appellant’s appeals have no merit. The prosecution case was water tight. The conviction of the appellants by the trial court was based on sound evidence. Accordingly both appellants’ appeal against conviction and sentence are hereby dismissed. The trial court conviction is upheld and the sentence is confirmed.

DATED and DELIVERED at NANYUKI this 8th day of NOVEMBER 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellants: Moses Githinji Mbaya ..........................................................

Charles Ng’orua Benjamin ................................................

For the State: …...........................................................................................

Language: …..............................................................................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE