[2017] KEHC 4460 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL APPEAL NO. 43A, 43B, AND 43C OF 2017

(Being an appeal from the court of the Acting Principal

Magistrateat Narok in Criminal Case No.773 of 2012,

R. v. Moses Mwangi,Daniel Njenga and Peter Nduati)

MOSES MWANGI....................................................1ST APPELLANT

DANIEL NJENGA....................................................2ND APPELLANT

PETER NDUATI.......................................................3RD APPELLANT

VERSUS

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

JUDGEMENT

1. The 3 appellants have appealed against their conviction and sentence of death in respect of robbery with violence contrary to section 296 (2) of the Penal Code (Cap 63) Laws of Kenya.

2. The respondent has conceded the conviction and sentence of all the 3 appellants.

3. The appellants were convicted on the evidence of Ann Sintamei Karia (PW 1), the complainant. PW 1 testified that on 4/7/2012 at about 7 p.m. she had closed her business and was heading to her home. On her way she met 2 people whom she knew well. These 2 people were Moses Mwangi and Peter Nduati, who are the 1st and 3rd appellants respectively. She further testified that it was not dark and that darkness was just setting in. She also testified that she knew their voices. Immediately the 3rd appellant greeted her and as she was answering, he jumped on her and pushed her down. The 3rd appellant then sat on her and held her mouth. She then screamed. The 1st appellant took her handbag and sweater. In that handbag, there was a phone Nokia 1110 and cash Shs.10,000. Again, in that sweater she had keys to her shop. Thereafter they left and as a result PW 1 rushed to her home and informed her husband about this robbery. She reported the matter to the police and the 3 appellants were arrested. The law requires that the evidence in respect of each appellant should be re-assessed separately. And for that reason I will consider the evidence in respect of each appellant separately.

MOSES MWANGI: 1ST APPELLANT

4. The 1st appellant (Moses Mwangi) has in his amended petition of appeal raised 3 grounds of appeal. In ground 1, he has faulted the trial court both in law and fact for convicting him on the evidence of a single witness (PW 1), which was based on him being recognized. Additionally, he has stated that the evidence of PW 1 was not supported by the provisions of section 137 (d) of the Criminal Procedure Code (Cap 75) Laws of Kenya. In this regard, I find that the complainant was able to recognize this appellant because it was not dark. She further testified that darkness was just setting in, and further the time was about 7 p.m. It was also her evidence that she knew the 1st appellant before the commission of this offence. Under cross examination, she testified that it is this 1st appellant who threatened to cut her with a knife if she screamed. She also testified that this 1st appellant was a cobbler. I find that the provisions of section 137 (d) of Criminal Procedure Code are inapplicable in this appeal, because they are in relation to consultation between the prosecution and the victim of the crime at the stage of plea bargaining. In the circumstances, I find that the complainant positively identified the 1st appellant as one of the 2 robbers. This ground of appeal is without merit and is hereby dismissed.

5. I will consider grounds 2 and 3 together. The appellants have faulted the trial court both in law and fact in failing to find that the prosecution had proved their case beyond reasonable doubt due to lack of vital witnesses and that his defence was not fully considered. In this regard, I find that the defence of the appellant was that of an alibi. He testified that on 4/7/2012 he closed his business at 7. p.m. and went to a club owned by one Susan. He further testified that he was in that club until 9. 30 p.m. and thereafter went to sleep. He also testified that he had never had any differences with the complainant, adding that the complainant was her customer. Finally he also testified that he had no grudge against the complainant. In the light of the recognition evidence of the complainant and his defence of alibi, I find that the prosecution had proved their case against the 1st appellant beyond reasonable doubt. I do not agree with prosecution that the offence was not proved against the 1st appellant.

6. This is a first appeal. As a first appeal court, according to Okeno v. R. (1972) E. A 32, I am required to reassess the entire evidence produced at trial and come to my own conclusion based on that evidence. I have done so and I find that the 1st appellant was convicted on sound evidence. I therefore confirm his conviction.

DANIEL NJENGA: 2ND APPELLANT

7. The 2nd appellant (Daniel Njenga) has raised 3 grounds in his amended grounds of appeal. In ground 1, he has faulted the trial court in both law and fact for convicting him on the evidence of visual identification/recognition and in the absence of an initial report of the police in which he was not mentioned. In this regard, I find that the complainant (PW 1) did not mention this 2nd appellant as one of the robbers who attacked her on 4/7/2012. Her evidence is that she was attacked and robbed by the 1st and 3rd appellants. The evidence connecting this 2nd appellant with this offence is that of Ledama Ole Karia (PW 3). It was the evidence of this witness that the complainant had told him that she had bitten one of the thugs on his hands as they struggled. This 2nd appellant was arrested on the basis that he had bite marks on his fingers. While under cross-examination, this witness testified that he identified the 2nd appellant by the marks on his face and hand, and went further to add that the 2nd appellant’s right thumb had been bitten by the complainant. Additionally, there is also the evidence of the investigating police officer No. 67045 PC Charles Obade (PW 6). According to the evidence of PW 6, the complainant told him that she knew the 3 robbers before. He also testified that there was moonlight which enabled the complainant to recognize the appellant. PW 6 further testified that the 3rd appellant (Peter Nduati) relocated to Eldoret after the commission of this offence but the police were able to trace him there and then had him arrested. It was also his evidence that the complainant identified this 2nd appellant as one of the robbers. I have considered this evidence of recognition and the evidence of the 2nd appellant in which he raised the defence of an alibi. In his unsworn statement, the 2nd appellant stated that he was in his home on 4/7/2012, and that he was arrested on 3/7/2012. In the light of this evidence, I find that the complainant did not identify this 2nd appellant as one of her robbers. Her evidence in this regard is that she met 2 people on her way home, who she positively identified as the 1st and 3rd appellant. I therefore find that this ground of appeal has merit. I therefore allow the 2nd appellant’s appeal against both conviction and sentence. I do not find it necessary to consider his other grounds of appeal. The prosecution rightly conceded his appeal. This appellant is therefore set free unless otherwise held on other lawful warrants.

PETER NDUATI: 3RD APPELLANT

8. The 3rd appellant (Peter Nduati) has raised 4 grounds in his petition to this court. I will start with ground 2 in which the 3rd appellant has faulted the trial court both in law and fact in finding that the complainant positively identified him as one of the robbers. The evidence of the complainant in this regard is that she knew this 3rd appellant before the commission of this offence. It was her evidence that this 3rd appellant is the one who knocked her down to the ground, sat on her and then held her mouth. It was also the evidence of the complainant that this appellant greeted her before knocking her down. Furthermore, she also testified that she knew the 3rd appellant before the commission of this offence as a person who repairs umbrellas. She also testified that she had given this 3rd appellant her umbrella for repair. More importantly, she also testified that she knew the voice of this 3rd appellant very well and recognized his voice when this 3rd appellant greeted her.

9. The defence of this 3rd appellant was that he was with his family at home on 4/7/2012. He further stated in his unsworn statement that he knew the complainant. This 3rd appellant admitted being a person who repairs umbrellas and the complainant had given him his umbrella for repair. He further stated that he had no issues with the complainant and that they relate very well. He positively stated that: “she could not fix me.” He also admitted having been arrested in Eldoret. I find from the evidence of the complainant and that of this 3rd appellant that the complainant positively identified this 3rd appellant as one of his robbers. In the circumstances, I find that this ground of appeal is lacking in merit and is hereby dismissed.

10. In ground 3, this 3rd appellant has faulted the trial court both in law and fact in failing to find that there were contradictions in the evidence of the complainant (PW 1) in respect of the place where she was attacked. The evidence of the complainant in this regard is that she was attacked while going to her home. The evidence of Ledama Ole Karia (PW 3) is that the complainant told her that she had been attacked by robbers while at her shop in Orenkitok Centre. PW 3 rushed to the scene along with other neighbours and found the shop goods of the complainant having been stolen. I find this contradiction as one that is not material. The reason being that the complainant was attacked while en-route to her house. In the circumstances, I find no merit in this ground of appeal.

11. In ground 1, the 3rd appellant has faulted the trial court both in law and fact for not according him a fair trial as required by the 2010 Constitution of Kenya in Article 50 (2) (6) (f). In this regard, I find that the accused was given an opportunity to cross-examine all the prosecution witnesses and he did so. He was also given an opportunity to make his defence. He chose to make an unsworn statement and called no witnesses. Furthermore, I find from the original proceedings of 2/10/2012 that the court read over the charge to each of the accused in Kiswahili. The record shows:

“A 1 – Not true

A 2 – Not true

Ct – PONGE.”

It is clear that this 3rd appellant was not given the opportunity to deny or admit the charge, which opportunity was accorded to the 1st and 2nd appellant. However, the record shows that the court entered a plea of not guilty in respect of all the accused persons. In response to this the 3rd appellant is recorded as having told the court that he needed statements which was then followed by an order of the court adjourning the case for hearing on 31/12/2012 with a mention on 16/10/2012. Thereafter, there were several adjournments until 19/2/2013 when this 3rd appellant along with the co-appellants told the court that he was ready for trial. The record of the trial proceedings shows that he thereafter fully participated in the trial. In the circumstances, I find that the omission by the court to record what this 3rd appellant did or did not do in response to the charge on 2/10/2012 is an omission that is curable in terms of section 382 of the Criminal Procedure Code (Cap 75) Laws of Kenya. In other words, it is a curable defect.

12. Furthermore, in ground 4, the 3rd appellant has faulted the trial court both in law and fact in failing to find that he had not escaped to Eldoret. In this regard, I find that this 3rd appellant was arrested in Eldoret after running away from Nakuru in terms of the evidence of No. 67045 P.C Charles Obade (PW6) under cross-examination. In the circumstances, I find no merit in this ground of appeal. I hereby dismiss it. This is 1st appeal court. I have reassessed the evidence produced at the trial and I find that the alibi defence of this 3rd appellant was rightly rejected in view of the recognition evidence of the complainant (PW 1). For this reason, I do not agree with the prosecution counsel that the evidence produced did not support the conviction. I therefore confirm this 3rd appellant’s conviction.

13. In the light of the foregoing, I hereby dismiss the 1st and 3rd appellants’ appeals in their entirety. I hereby allow the appeal of the 2nd appellant with the result that his conviction and sentence are hereby set aside and he is set free unless otherwise held on other lawful warrants.

Judgement delivered in open court this 31st day of March, 2017 in the presence of Appellants and Mr. Mwangi for Respondent.

J. M. Bwonwonga

Judge

31/03/2017