[2024] KEHC 2124 (KLR)

Mucere v Republic (Criminal Appeal 48 of 2023) [2024] KEHC 2124 (KLR) (5 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2124 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 48 of 2023

DR Kavedza, J

March 5, 2024

Between

John Murage Mucere

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence imposed by Hon. R.M KItagwa (S.R.M) on 26th August 2022 at Kibera Chief Magistrate’s Court Criminal Case no. 348 of 2020 Republic vs John Murage Mucere)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of attempted robbery with violence contrary to section 295 as read with section 297 (2) of the Penal Code. He was sentenced to serve twenty (20) years imprisonment. Being aggrieved, he filed an appeal challenging his conviction and sentence.

2. In his appeal, he raised five grounds which have been coalized as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He complained that his rights under section 211 of the Criminal Procedure Code were not complied with. He argued that his defence was not considered. In addition, the charge sheet was defective. He prayed that the conviction be quashed and the sentence imposed by the trial court be set aside.

3. As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

4. The Prosecution in this regard called four witnesses to prove their case.

5. Martin Njoroge Njeri, PW 1, recounted to the court his occupation as a taxi driver. Recollecting the events of the night of March 12, 2020, at approximately 0100 hours, he found himself traversing Mombasa Road in his taxi. It was during this journey that he encountered the appellant, who flagged him down to travel to Lang'ata Road via the Southern Bypass. Agreeing upon a fare of Kshs. 400, they embarked on their journey.

6. However, as they reached a dimly lit area devoid of streetlights, the situation took a terrifying turn. The appellant, who was PW 1’s passenger, suddenly brandished a knife and issued a menacing command for him to decelerate. Caught off guard, PW 1 complied, albeit reluctantly. Interestingly, a motorcycle trailing them also reduced its speed, which made him realise that they were together.

7. In a courageous attempt to defend himself, PW 1 engaged in a struggle with his assailant, who persisted aggressively. Amidst the scuffle, the assailant attempted to gain control of the vehicle's gear, leading PW 1 to veer the taxi off the road. The sudden manoeuvre caused the vehicle to lose its stability, propelling it into the adjacent Nairobi National Park. the appellant, not restrained by a seatbelt at the time, was ejected from the vehicle upon impact, further adding to the chaotic scene.

8. He told the court that he sustained injuries on the head. The appellant also sustained injuries and was speaking incoherently. He called his employer, PW 2, and security officers who arrived at the scene. They were taken in an ambulance to Kenyatta National Hospital for treatment.

9. Steve Hannington Onyango (PW 2) testified that he owns a taxi which is operated by PW 1. On the night of 12th March 2020, he received a call from PW 1 informing him of a case of attempted carjacking. He rushed to the scene which was about 30 minutes away and found PW 1 in the company of another person who was in an ambulance. He assessed his motor vehicle which was damaged and there was a knife on the dashboard. He reiterated the evidence of PW 1 on the ensuing events.

10. CPL Garishon Mbita Wanyonyi (PW 3) told the court that was on duty on the night of 12th March 2020 when he received a call of an accident along Southern Bypass. On arriving at the scene, they found two individuals, a driver and his passenger. The driver reported that his passenger had tried to rob him resulting in a struggle and the accident. They were taken to KNH in an ambulance since they were injured. He told the court he recovered a knife used in the attack from the vehicle. He identified the appellant as the assailant.

11. PC Stella Cheroli (PW 4) the investigating officer recounted the events as elaborated by the complainant. She produced the complainant’s treatment notes.

12. After the close of the prosecution's case, the appellant was found to have a case to answer and was put on his defence. In his sworn defence, he told the court that he sells eggs along Mombasa Road. He admitted to being involved in a road accident with the complainant. He denied brandishing a weapon or threatening the complainant. He maintained that he was shocked to learn the accusations against him and was only going home.

13. The parties filed written submissions in support of their respective positions which have been considered. The issue for determination is whether the appellant was properly convicted for the once of attempted robbery with violence.

14. I have considered the evidence adduced in total, on the offence of which the appellant was convicted. It is an offence of; attempted robbery with violence contrary to section 297 (2) of the Penal Code. The subject provisions state that: -(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 the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death”

15. It suffices to note that, section 297 (2) of the Penal Code cannot be read independent of; section 297 (1) thereof, which states as follows:(1)Any person who assaults any person with intent to steal anything, and, at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to its being stolen, is guilty of a felony and is liable to imprisonment for seven years.

16. Therefore, the two sections must be considered together, but even more so, the offence herein is of; attempted robbery, and once again the definition of robbery under section 295 of the Penal Code comes to play. The subject provisions state as follows: -“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”

17. The aforesaid provisions thus require that, for the offence of attempted robbery with violence to be established, it must be proved inter alia that the robber; -a)Attempted to rob the victim;b)Was armed with a dangerous or offensive weapon;c)Was in the company of one or more other person(s);d)Assaulted, wounded, beat or threatened to use violence against the victim, in order to steal or resist an attempt to thwart the act of stealing.

18. I have evaluated the evidence adduced in the trial court afresh, as expected of the 1st appellate court, to arrive at its own conclusion as to whether there was adequate evidence to sustain a conviction. Pursuant to the aforesaid, and in particular the elements of the offence herein, I find that there is no dispute that, the appellant boarded the complainant’s taxi as a fare-paying passenger. During the journey, the appellant brandished a knife which he used to threaten the complainant forcing him to stop the motor vehicle. In the ensuing scuffle, both parties were injured in the motor vehicle accident that resulted.

19. In the same vein, PW 2 and PW 3 arrived at the scene and found the two injured. They were taken to Kenyatta National Hospital for treatment. In the treatment notes produced by PW 4, the investigating officer confirmed that the complainant was injured and had to be admitted to the hospital.

20. All the prosecution witnesses gave evidence of the existence of a knife which was used to threaten the complainant. PW 3 and PW 4 told the court that the knife was recovered from the scene. However, it was not produced as evidence in this case. That notwithstanding, there was evidence from PW 1 that there was a threat to his life as a result of which he suffered injuries.

21. The next issue to consider is the number of assailants. According to the evidence of the complainant, there was a motorcycle following him. It was his evidence that the appellant had an accomplice who slowed down once the attempted robbery began. PW 2 and PW 3 who arrived at the scene after the incident did not testify to the existence of an accomplice of the thwarted robbery. Only the complainant testified to the presence of a person who was allegedly following him in a motorcycle.

22. Corroboration of evidence necessary in criminal cases. The meaning of corroboration as defined or stated in the Nigerian case of Igbine vs. The State {1997} 9 NWLR (Pt.519) 101 (a), 108 is thus: -“Corroboration means confirmation, ratification, verification or validation of existing evidence coming from another independent witness or witnesses".

23. In Mukungu vs. Republic [2002] 2 EA 482, the Court of Appeal citing Mutonyi vs. Republic [1982] KLR 2003, held that:“An important element in the definition of corroboration is that it affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it: (See Republic vs. Manilal Ishwerlal Purohit [1942] 9 EACA 58, 61. ”)

24. It is therefore clear that corroborative evidence or material ought to confirm, ratify, verify or validate the existing evidence and must emanate from another independent witness or witnesses. It must affect the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it. In this case there was clearly no material corroborating the Complainant’s evidence on that the appellant had an accomplice. The evidence was therefore inconclusive.

25. The other issue to consider is; whether the assailant attempted to steal from the complainant. The trial Magistrate found that the appellant was the assailant who tried to rob the motor vehicle in use as a taxi by the complainant. From the evidence on record, the prosecution led evidence to show that the appellant entered the complainant’s taxi and tried to carjack him.

26. The prosecution therefore proved beyond reasonable doubt that the appellant assaulted the complainant specifically to steal the motor vehicle and immediately before the said assault he threatened to use violence to obtain the motor vehicle.

27. In his appeal, the appellant argued that his rights under section 211 of the Criminal Procedure Code were not complied with. Section 211 of the Criminal Procedure Code requires that the rights of an accused person be explained to him at the close of the prosecution case and when he is being put on his defence. These rights are:(a)The right to remain silent and say nothing.(b)The right to make an unsworn statement from the dock in which event the accused is not liable to cross-examination by the prosecution.(c)The right to give sworn evidence from the witness box in which event the accused becomes liable to cross-examination by the prosecution if the prosecution wishes.(d)The right to call witnesses if the accused so wishes.

28. The rights under section 211 of the CPC are crucial rights of an accused person in a trial that are meant to ensure a fair trial. When they have been explained to an accused, he responds by electing to proceed as he wishes. His response ought to be taken down and ought to appear on the court record. The accused is then called upon to proceed in the manner he has elected to testify. The record before the court indicates that on 24th June 2022, after the ruling on a case to answer was delivered section 211 of the CPC was explained to the appellant in Kiswahili. The appellant opted to give a sworn statement and not to call any witness. The date for defence hearing was set. The fact that the appellant made his options clear to the court, that he would give sworn evidence and not call any witnesses is evidence that the court complied with Section 211.

29. The appellant challenged the charge sheet as being defective. The appellant argued that the charge sheet failed to specify the sub-section under which he was charged. That he was charged with the offence of attempted robbery with violence contrary to section 295 as read with 297 of the penal code. He maintained that section 297 has 2 subsections, hence, it was unclear which charge he was facing and therefore the charge sheet was incurably defective.

30. It is trite law that an accused person is convicted on the strength of the Prosecution case, and not on the weakness of the defence as had been held in Israel Epuku S/O Achutu vs. R. [1934] EACA 166. The Court of Appeal while addressing itself to the question of a defective charge stated as follows in the case of Obedi Kilonzo Kevero vs. Republic [2015] eKLR per Koome, G.B.M. Kariuki & Sichale. JJA.“The test applicable by an appellate court when determining firstly the existence of a defective charge, and secondly its effect on an appellant’s conviction is whether the conviction based on the alleged defective charge occasioned a miscarriage of justice resulting in great prejudice to the Appellant. In the case of J.M.A v R [2009] KLR 671, it was held inter alia that:“It was not in all cases in which a defect detected in the charge on appeal would render a conviction invalid. Section 382 of the Criminal Procedure Code was meant to cure such an irregularity where prejudice to the Appellant is not discernible.”

31. Further, this Court observed in Samuel Kilonzo Musau vs. Republic, Cr. App No. 153 of 2013 (Ur), that Section 382 of the Criminal Procedure Code insulates a finding or sentence of the trial court from challenge on account of any error, omission, or irregularity in the charge unless it has occasioned a miscarriage of justice. (See also George Njuguna Wamae vs. Republic, Cr. App. No. 417 of 2009).

32. In the trial before the subordinate court, the appellant was charged with “attempted robbery with violence contrary to section 295 as read with section 297 of the Penal Code” The particulars of the offence were that, “on 12th day of March 2020 at around 0100 hrs along Southern Bypass in Lang’ata Sub County within Nairobi County while armed with a dangerous weapon namely knife attacked one Martin Njoroge Njeri with the intention of robbing him.” The charge and the particulars thereof were very clear with respect to the offence which the appellant was facing despite the omission of the specific subsection.

33. From the record, there is no scintilla of evidence that the appellant was prejudiced by the omission to indicate the specific sub-section having indicated the specific charge against the appellant. I am therefore satisfied that there was no prejudice or miscarriage of justice. For this reason, I find that Section 382 of the Criminal Procedure Code is properly invoked to cure the omission.

34. The appellant also argued that his defence was not considered. In his defence, the appellant denied committing the offences and maintained his innocence. From the record, the trial court considered the appellant’s defence and found it to be unbelievable. This ground of appeal therefore fails.

35. Having considered the totality of the prosecutions, the prosecution led evidence to show that the appellant attempted to rob the appellant while armed with a knife. During the ordeal, the appellant threatened to use actual violence to against the complainant.

36. However, the appellant was charged with the offence of attempted robbery with violence. The evidence on record, failed to establish the ingredients of the offence charged, but that does not mean that an offence was not committed under the law. Section 179 of the Criminal Procedure Code Cap 76 provides as follows:-“179. ..(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence.(2)When a person is charged of an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

37. It is clear from this section that the power of the court to convict an accused person of an offence lesser than the offence with which the person is charged is only available when the “remaining particulars are not proved”, the “remaining particulars” being the particulars necessary to prove the major offence and which particulars are not required to be proved in respect of the minor offence.

38. Having found that the appellant was involved in an attempted robbery but no evidence was produced to prove that he was in the company of one or more, the ingredients of the offence of attempted robbery with violence were not proved beyond reasonable doubt. In this instance, the intention to steal was clear; and the actions leading up to the theft stopped just short of taking the motor vehicle, except for the accident that occurred.

39. Consequently, the appellant should have been convicted, on this basis, of the lesser offence of attempted robbery contrary to section 297 (1) of the Penal Code, an offence punishable with seven years’ imprisonment. The sentence passed lay outside these limits. The conviction must be altered to the lesser offence by dint of section 179 of the Criminal Procedure Code.

40. The appellant was sentenced to serve twenty (20) years imprisonment. Having already established that the appellant is convicted under section 297 (1), it is clear that the 20 years imprisonment term is not lawful as its outside the limits of the law.

41. The upshot of the above is that the appeal against conviction and sentence partially succeeds. The appellant is sentenced to serve six (6) years imprisonment, the sentence shall be computed from the date of his arrest on 30th March 2020 having spent the entirety of his trial in remand custody.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 5THDAY OF MARCH, 2024D. KAVEDZAJUDGEIn the presence of:Appellant present in personMs. Tumaini for the RespondentJoy/Omwoyo Court Assistant