[2018] KECA 7 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: VISRAM, KARANJA & KOOME, JJ.A.)

CRIMINAL APPEAL NO.12 OF 2013

BETWEEN

MULAMBA ALI MABANDA..........................................APPELLANT

AND

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

(Being an appeal against the Judgment of the High Court of Kenya at Mombasa (Odero & Nzioka, JJ. Dated 21stSeptember, 2012

in

H.C.CRA. No. 483 of 2010

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JUDGMENT OF THE COURT

1. Mulamba Ali Mabanda (the appellant), was charged alongside one other before the Chief Magistrate’s court at Mombasa with four counts of robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars of the charge were given as follows:

COUNT 1: ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296 (2) OF THE PENAL CODE

MULAMBA ALI MABANDA 2. HAMISI KARISA CHENGO On the 20thday of June, 2009 at Kwaholla village Changamwe Location in Mombasa District within the Coast Province, jointly with others not before court while armed with dangerous weapons namely pangas and rungus robbed SYLVESTER NZUKI MAKATO of one radio make Sony; three D.V.D machines, one mobile phone make Nokia, one CD changer and assorted clothes all valued at Kshs.79,200/- and at or immediately before or immediately after the time of such robberythreatened to use actual violence to the said SYLVESTER NZUKI MAKATO.

COUNT II: ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296 (2) OF THE PENAL CODE

MULAMBA ALI MABANDA 2. HAMISI KARISA CHENGO On the 20thday of June, 2009 at Kwaholla village Changamwe Location in Mombasa District within the Coast Province, jointly with others not before court while armed with dangerous weapons namely pangas and rungus robbed MARY WAIRIMU NJERI of D.V.D machine, video machine and cash Kshs.1,800/-, all valued at Kshs.11,800/- and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said MARY WAIRIMU NJERI.

COUNT III: ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296 (2) OF THE PENAL CODE

MULAMBA ALI MABANDA 2. HAMISI KARISA CHENGO On the 20thday of June, 2009 at Kwaholla village Changamwe Location in Mombasa District within the Coast Province, jointly with others not before court while armed with dangerous weapons namely pangas and rungus robbed FATUMA KOMBO ABDALLA of one handbag, National Identity card, Title Deed documents and cash Kshs.2,050/-all valued at Kshs.18,050/- and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said FATUMA KOMBO ABDALLA.

COUNT IV: ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296 (2) OF THE PENAL CODE

MULAMBA ALI MABANDA 2. HAMISI KARISA CHENGO On the 20thday of June, 2009 at Kwaholla village Changamwe Location in Mombasa District within the Coast Province, jointly with others not before court while armed with dangerous weapons namely pangas and rungus robbed CATHERINE NZULA MAKITI of two D.V.D. machines, amplifier, mobile phone make Nokia and cash Kshs.200/-all valued at Kshs.40,200/- and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said CATHERINE NZULA MAKITI.

2. They both denied the charges and hearing began, with the prosecution calling a total of three witnesses. Having been robbed separately, each of the prosecution witnesses gave an account of their respective experiences. According to Mary Wairimu Njeri (PW1), she and her husband were fast asleep on the material date, when at around 2am, a gang of robbers struck. The couple was roused from their slumber by a loud bang on their door, whereupon they found themselves confronted by a group of individuals, one of whom was wielding a panga (machete) and who threatened to cut up PW1’s husband unless he gave up whatever money the couple had. Fearing for her husband’s safety, Mary got Kshs.1,800. 00 from her purse and handed it to the robbers. The couple was then ordered to lie down as the gang proceeded to take their video and DVD machines as well, before moving on to the next house.

3. A similar account was given by Fatuma Kombo Abdalla (PW 2), save that in her case, the thugs demanded that she open the door for them, failing which they would kill her. The moment she complied, they came in demanding for her phone. Finding none, they proceeded to rob her of Kshs.2050. 00, a title deed and personal documents. As with the other two witnesses, Catherine Nzula Makau (PW 3), was at her house in the company of her sister when the attack occurred. They too were roused from sleep when a group of people broke down the door and directed them to be quiet and to hand over money. While at it, the men also took PW 3’s mobile phone, 2 DVD machines, one television set and an amplifier all belonging to PW 3. They are then said to have demanded money from PW 3’s sister all the while brandishing their pangas and threatening to cut up the duo should they fail to comply. Out of fear, PW 3’s sister handed themsome Kshs.200/- at which point they left. Shortly thereafter, a second lot walked in also demanding money but the two sisters informed them that they had already given all their valuables to the gang’s counterparts.

4. The robberies were said to have been reported at Changamwe police station, with the three witnesses recording statements. Thereafter, the appellant was apprehended by the village elder and handed over to the police. However, neither the village elder nor any police officer was called to testify at the hearing. Nonetheless, all the three witnesses attested to having seen the appellant as one of the culprits in the whole saga. Based on their accounts, the appellant was charged alongside another as aforesaid.

Having heard this testimony, the learned trial magistrate found that since the complainant in the first count failed to testify and given that none of the witness’ testimonies support the charge under that count, then the same could not be sustained against the accused persons. Both were therefore acquitted of the charges under that count.

5. On the rest of the counts, it was held that no prima facie case had been established against the appellant’s co accused on those counts as well and on that basis; he was acquitted of the same under Section 210 of the Criminal Procedure Code. For the appellant however, the learned trial magistrate ruled that he had a case to answer in respect of counts 2, 3 and 4 and he was placed onto his defence.

6. On his part, the appellant elected to make an unsworn statement of defence and called no witnesses. It was his case that on 5th July, 2009, he was enjoying his day off work, minding his own business and after having had lunch, he decided to visit a friend. On his way however, he encountered a group of people who had blocked the road and who refused to let him through despite his request that they do so. After an exchange of words, the men identified themselves as sungu sungu (militia) and proceeded to apprehend him over issues he knew nothing about. After approximately two hours, some Administration police men came in and took him to Changamwe Police Station where he was accused and later arraigned in court over an offence he had nothing to do with. To him, some people were out to finish him using bogus charges for neither his apprehenders nor the police were called in to testify and shed light on the matter.

7. By a judgment delivered on 16th November, 2010, the learned trial magistrate found that the prosecution had proved the charges against the appellant, convicted him on the 2nd, 3rd and 4th counts and sentenced him to suffer death as by law prescribed.

8. Dissatisfied with that verdict, the appellant lodged an appeal before the High Court at Mombasa, contending that the trial magistrate erred; in holding that the appellant was identified by recognition yet there was no evidence to show that the complainants had identified him; by convicting the appellant in the absence of investigations; by rejecting the appellant’s defence; by holding that the appellant had been positively identified yet the conditions were not favourable for such identification and lastly, by finding that the only available sentence was the death penalty.

That appeal was heard and determined and by a judgment delivered on 21st December, 2012, the first appellate court Odero and Nzioka, JJ. agreed with the trial court, and dismissed the appeal in its entirety and confirmed the sentence imposed by the trial court, hence this second appeal.

9. Before this Court, the appellant has relied on his homegrown grounds of appeal as well as the supplementary grounds of appeal filed by his Counsel. In a nutshell, he impugns the findings of the two courts below on the grounds that; the learned judges erred by failing to re-evaluate the evidence afresh as they failed to draw an adverse inference that crucial witnesses, to wit the village elder, arresting officer and the investigating officer had not been called to testify; the trial court failed to exercise its power under section 140 (sic) of the Evidence Act to summon the said witnesses; the courts erred in failing to hold that no proper investigation was ever conducted and this was a case of dock identification; the trial magistrate erroneously shifted the burden of proof by holding that it was for the appellant to explain why witnesses who had no grudge against him should frame him; his defence was never considered; and that the two courts below erred in failing to find that circumstances at the scene were unfavourable for the positive identification of the appellant.

10. At the hearing of the appeal, learned Counsel for the appellant, Mr. Obaga, submitted that the first appellate court failed to re-analyze and re-evaluate the evidence placed before the trial court. He particularly faulted the trial court for failing to summon the landlord, the other tenants to the premises, the village elder and the investigating officer to testify. In addition, he submitted that the lighting at the scene was never interrogated by the court and that when these issued are looked at conjunctively, the two courts below ought to have concluded that the identification of the appellant was never done conclusively, more so given the fact that none of the witnesses ever gave any indication that they knew his name at the time of identification.

11. On the other hand was Mr. Monda, Senior Assistant Director of Public Prosecutions, opposed the appeal, stating that the first appellate court fully discharged its mandate. He submitted that the concurrent findings of fact by the two courts were proper as the witnesses were truthful and the appellant was a person known to them prior to the robbery. In his winding up address, he stated that this was a case of recognition as opposed to identification and as a result, the issue of some witnesses’ failure to testify should not arise. He urged the Court to dismiss the appeal.

12. This being a second appeal, this Court is restricted to addressing itself to matters of law only. It will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence or they are based on a misapprehension of the evidence, or that the courts below are shown demonstrably to have acted on wrong principles in making the findings. See the case of Kaingo versus Republic [1982] KLR 213at page 219 wherein this Court stated thus:-

“A second appeal must be confirmed to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The rest to be applied on second appeal is whether there was any evidence on which the trial court find as it did (Reuben Karoti S/O Karanja versus Republic [1956 17EACA 146].”

13. Based on the grounds of appeal and the submissions of Counsel, two issues arise for determination in this appeal; whether the failure to call some witnesses was fatal to the prosecution case and secondly, whether the appellant was conclusively identified.

The perceived failure to call witnesses was given focus in the case of Bukenya & Others v. Uganda (1972) EA 549; where the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case; and that where essential witnesses are available but are not called, the court is entitled to draw the inference that if their evidence had been called, it would have been adverse to the prosecution case.

14. The appellant herein raised the contention that the prosecution failed to call the village elder, other tenants, the landlord and the investigating officer. Further, that given that failure, it behooved the court to summon the said witnesses and failure to do so rendered the conviction unsafe. In the appellant’s view, the two courts ought to have drawn an inference that the said witnesses’ evidence would have been adverse to the prosecution’s case. However, it is to be remembered that the context in which the Bukenyadecision was made is that of a case in which the evidence called is barely adequate. Section 143 of the Evidence Act (Cap 80) provides that, in the absence of any requirement by provision of law, no particular number of witnesses shall be required for the proof of any fact.

15. In this appeal, the testimony of all three witnesses was consistent that the appellant was among those that committed the offence. In addition, it is not clear what value the evidence of the landlord or the other tenants would have added to the evidence of the three witnesses. With regard to the village elder and the investigating officer, the appellant asserted that their failure to testify had a negative impact on the appellant’s identification. More specifically, that it resulted in a missing link in so far as the appellant’s identification was concerned.

16. The testimony of PW 1, PW 2 and PW 3 was concurrent that the appellant, a person previously known to each of the witnesses, committed the crime and the two courts below found that testimony credible. In absence of contradictions from the three witnesses, it is safe to surmise that the investigating officer, other tenants, the village elder, and the landlord would have thus been peripheral witnesses.

17. On identification, it was indeed stated in Republic v. Turnbull and Others(1976)3 ALL ER 549, that:-

“…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, as for example by passing traffic or press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?... Finally, he should remind the jury of any specific weakness which had appeared in the 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 are sometimes made.”

It is perhaps on the basis of the Turnbull decision that the appellant contends that the lighting at the scene was never interrogated nor was an identification parade conducted. In this case however, those contestations fail to find ground. This is because, firstly, the case before court was oneof recognition not identification. According to each of the witnesses, the appellant was someone they knew and recognized.

18. Secondly, the witnesses indicated that there was enough lighting with which they were able to see the appellant. For PW 1, the lighting was a kerosene lamp. For PW 2 it was by way of the flashlight carried by the appellant, which he is said to have shone on his face and for PW 3 the lighting came from a hurricane lamp. The fact that the witnesses recognized the appellant is apparent when PW1 reiterated that she sawthe 1st accused with the panga. In her words:-

“I identified the one who had apanga. I saw him as there was light in the house. I had known him before. He had come there three times with the son of the owner of the building. The sun (sic) of the landlord is called Rashid and he was also one of the robbers as I heard his voice. Though he never came to where I was. I knew the 1staccused before and is the one who had thepangaand took the money.”

It was also stated by PW 2 that:-

“Those who entered my room were two and I recognized one of them as the torch light showed his face. I saw him clearly and I knew him before. He used to do casual work on the plot. He used to do washing and digging there. He is the 1staccused. I did not recognize the other. The 1staccused had apangaand a big torch.”

And by PW 3 that:

“Two of them entered and I saw them using the light from my hurricane lamp…. One at the door who is the son ofthe landlord asked the others to look for another mobile phone. He is called Rashid. The others were his friends and used to come to work there. I recognized Rashid and one of them who used to visit him. He is the 1staccused.

19. PW1 also testified that they found the main door to the building leading to their rooms unbroken. The fact that the robbers were able to gain access through the main door, yet had to forcefully break into the individual houses, lends credence to the claim that this was an inside job. Coupled with the consistent evidence of recognition of the appellant by all the witnesses, no court would be faulted for finding the appellant guilty as charged.

Closely related to the above was the assertion that even as the two courts below considered the prosecution case favourably, they ignored the appellant’s defence. Looking at the judgment rendered by the trial court, the trial magistrate had this to say about the defence:-

“He denied saying the complainants made claims against him as they wanted to finish him. But I do not see how or why the complainants could had(sic)conspired to do so in the circumstances. They said they saw and recognized him as one of the robbers as they knew him very well before and there was enough light from the hurricane lumps(sic)inside their houses and electricity light outside…”

20. Consequently, the trial magistrate cannot be accused of having failed to consider the appellant’s defence. He duly paid regard to it and found it wanting. As regards the failure to summon the arresting officer, it is our view that his evidence would have added little value to the appellant’s case.

We say so because according to PW3, they gave the names of the robbers to the village elder and the police and that would explain how the appellant was identified and consequently arrested. In the end, we are not persuadedthat the two courts below fell into any error or misdirected themselves in arriving at their decision. The conviction before the trial court was sound and the same was properly upheld by the High Court.

We find no reason to interfere. Accordingly, we find that this appeal devoid of merit and the same is hereby dismissed.

21. However, we must take cognizance of recent developments in the Law in this area and apply it to the present case, particularly because the same is advantageous to the appellant. In its recent decision in Francis Karioko Muruatetu and another vs Republic,(2017) eKLRthe Supreme Court of Kenya, pronounced that the mandatory aspect of the death sentence was unconstitutional. The Court therefore effectively removed the fetters placed on the courts’ discretion when passing sentence in cases which hitherto carried the death penalty as the only lawful sentence upon conviction. This decision allows us to interfere with the sentence herein in the interest of justice. We observe that the appellant had fully mitigated before the trial court and relying on that mitigation address, we are able to impose the sentence which in our view is appropriate to the offence committed by the appellant, and the circumstances surrounding the same.

22. From the said mitigation, we note that the appellant was a first offender, he had a young family he was taking care of; he was said to have reformed; the items robbed from the complainants were of modest value; thecomplainants were not injured; the appellant has already been incarcerated for almost nine years. In our view, he has already paid his debt to society and learnt his lesson. In the circumstances the appropriate sentence that commends itself to us is one that is reduced to the term already served. We therefore order that the appellant be released from prison custody unless he is otherwise lawfully held.

Dated and Delivered at Malindi this 1stday of February, 2018.

ALNASHIR VISRAM

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JUDGE OF APPEAL

W. KARANJA

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JUDGE OF APPEAL

M. K. KOOME

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JUDGE OF APPEAL

I certify that this is a

true copy of the original

DEPUTY REGISTRAR