[2022] KEHC 167 (KLR)

Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR) (4 March 2022) (Judgment)

Neutral citation: [2022] KEHC 167 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)

JM Mativo, J

March 4, 2022

Between

Fredrick Gitonga Mungania

1st Appellant

Stephen Mutuku Kenga

2nd Appellant

Simon Onyango

3rd Appellant

and

Republic

1st Respondent

Republic

2nd Respondent

Republic

3rd Respondent

(Appeals against conviction and sentence in Criminal case number 118 of 2017, Voi, R v Fredrick Onyango, Fredrick Gitonga Mungania and Stephen Mutuku delivered by Hon. F. M. Nyakundi. on 14. 4.2020)

Judgment

1. This judgment determines three consolidated appeals, namely Criminal Appeal No. 21 of 2020, Fredrick Gitonga Mungania v Republic; Criminal appeal Number E003 of 2021 Stephen Mutuku Kenga v Republic and Criminal Appeal No. E068 of 2021, Simon Onyango v Republic. The appellants were jointly charged, tried and convicted in Voi CMCCR Case No. 118 of 2017 for the offence of Robbery with violence contrary to section 296 (2) of the Penal Code1 and sentenced to serve 13 years imprisonment as follows: - in count one, each one of them was sentenced to serve 13 years in prison without the option of a fine; in count two they were each sentenced to serve 13 years in prison. With regard to the third count, each of them was sentenced to serve 13 years imprisonment without the option of a fine. The court ordered the sentences to run concurrently.1Cap 63, Laws of Kenya.

2. On 7th June 2021, Oginjo J consolidated Criminal Appeal No. 21 of 2020 with number E003 of 2021 and ordered that the record remains in No. 21 of 2020. These two appeals proceeded before me on 3rd December 2021 and I reserved a judgment delivery date for 11th February 2022 and I embarked on writing the judgment. However, on 7th February 2022 it came to my attention that the Simon Onyango who was the 1st accused in the lower court had also appealed against the same judgment in High Court Criminal Appeal No. E068 of 2021. Accordingly, I issued Production orders for him to be produced before me on 10th February 2022 when I notified all the appellants of the existence of the third appeal against the same judgment and consolidated the 3 appeals. Consolidation of suits saves costs, time and effort and makes the conduct of several actions more convenient by treating them as one action. The rationale behind consolidation of matters is to avoid conflicting judgments and save time by clubbing together matters involving common questions of fact and law.

3. For the sake of brevity, in this judgment, where the circumstances so permit, the appellants in the 3 consolidated appeals, in Fredrick Gitonga Mungania, Stephen Mutuku Kenga and Simon Onyango will be referred to as the 1st, 2nd and 3rd appellants respectively.

Duty of a first appellate court 4. The principles to be kept in mind by a first appellate court while dealing with appeals are:22See Ganpat vs. State of Haryana{2010} 12 SCC 59. a.There is no limitation on the part of the appellate Court to review the evidence upon which the order appealed against is founded and to come to its own conclusion.b.The first appellate Court can also review the trial court’s conclusion with respect to both facts and law.c.It is the duty of a first appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed.d.When the trial Court has breached provisions of the constitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question.

The trial at the lower court 5. Count one alleged that on 8th February 2017 at 7. 30 hrs at Mwatate District within Taita Taveta County while armed with dangerous weapons, namely pistols and knives they jointly robbed James Mulevu Kingoo 105 grams of gemstones valued at Kshs. 500,000/=, 2 mobile phones make Sumsung Note 3, Nokia 1110 valued at Kshs. 47,000/=, motor vehicle Reg. No. KCB 788R Make Prado Land valued at Kshs. 4. 5 million and cash Kshs. 700,000/= all valued at Kshs. 5,247,000/= and immediately before or after the time of the robbery threatened to use actual violence on James Mulevu Kingoo.

6. Count 2 alleged that on the same day, time and place at 7. 30 hrs while armed with dangerous weapons, namely pistols and knives, they jointly robbed Queen Muteti a mobile phone make nokia valued at Kshs. 2,200/= and cash Ksh. 6,500/= all valued at Kshs. 8,700/= and immediately before or immediately after the robbery they threatened to use actual violence to Queen Muteti.

7. Count 3 was said that on the same day, place and time while armed with dangerous weapons, namely pistols and knives, they jointly robbed Hassan Mwiti M’kea a mobile phone make Samsung 700 valued at Kshs. 90,000/=, Samsung small valued at Kshs. 5,000/= and Kshs. 2,000/= all totalling to Kshs. 97,000/= and immediately before or immediately after the time of such robbery they threatened to use actual violence to Hassan Mwiti M’kea.

8. The prosecution case rested on the evidence of 12 Witnesses. The crux of the prosecution case was that the accused violently robbed the complainants; that at the time of the robbery they were armed with a pistol and knifes; that the incident lasted more than one hour and lights were on, so, they were able to see the robbers; that the 3rd appellant was known to the complainants/witnesses while the other 2 were identified by the witnesses as the attackers at separate identification parades. The defence case rested on their sworn evidence. None of them called witnesses. The essence of their defence is that they did not commit the offence and they were wrongly implicated.

9. PW1, Mr. James Kingoo Mulevu testified that on 8th February 2017 he received a call from number 079121755 and the caller informed him that he had minerals which he wanted to sell to him. At 7pm he received another call from the same number and at around 7. 30pm the callers said they were at his gate, so he asked the watchmen to open for them. He said his compound has bright security lights. Among the 3 persons was Simon, his former employee of 15 years, while, the other one was carrying a small leather bag and the third one was carrying a canvass bag.

10. He said he ushered them into his office within his compound and the 2nd accused bend as if he was opening the bag containing minerals but instead, he removed a gun and Simon, told him they wanted was money and if he shouts, they would shoot him. He said his office had lights and he was able to see them. He said the 1st and the 3rd accused held him from behind and tied his hands at his back, and one of them asked him who was in the house and he told them it was Jackline and Mwende. He said Simon the 3rd accused left the house and shortly, they came back with the watchman and ordered him to lie down. They ransacked the house and got Kshs. 400,000/= from a drawer and led him to his bedroom and took 500gms of minerals worth Kshs. 500,000/= and in the sitting room they took two phones, nokia 110 worth Kshs. 2,000/= and a Samsung Note 3 worth Kshs. 45,000/=. He said they did not blindfold him, so, he was able to see them very well because all this time the lights were on.

11. He said that Simon picked his keys for KCD 788R, went and ransacked the car and took Kshs. 300,000/= from the car, then he came back furious saying they were running out of patience because they were asking for money which he kept saying he did not have. He threatened to shoot the watchman in his presence and to show their seriousness they brought him in. At this point, a lorry hooted at the gate, and Simon went and returned with PW6, and placed him on the ground, ransacked him and recovered some money from him. After they left, the watchman’s son, a young boy managed to untie him, so he locked the door and pressed the alarm button and shortly a police officer came. He said he checked his CCTV camera only to find that the attackers had cut the wire. Shortly, the OCS Mwatate Police Station told him that his vehicle had been found parked on the roadside along Voi Mwatate road, and after opening it, he noted that is license was missing. Later, their phones were recovered at the road side.

12. He testified that on 17th February 2018 at Voi Police Station, from a 8 man identification parade, he identified the 3rd accused. He said the incident took over one hour, so, he had sufficient time to see him. In the 2nd parade he identified no one but in the 3rd parade, he identified the 2nd accused, whom he recognized as the person who was brandishing the gun. He described him as fairly tall and the one who threatened to shoot him at his office. Two days later the police told him they had arrested the 1st accused, his former employee, so, there was no need for an identification parade. In court, he identified the attacker’s leather and canvass bags, his Samsung phone, Nokia 110, the plastic rope used to tie him, and the accused persons in court. He was recalled on 23thApril 2019 by the 1st and 3rd accused persons for further cross-examination but he essentially recapped his earlier account.

13. PW2, Queen Muteti recalled that on 8th February 2017, she went to PW1’s house, knocked the gate and after about 10 minutes a young man called Simon Onyango, who she previously worked with for one and a half years opened the gate. She said that the compound is well lit. She said Simon told her that they were struggling a lot yet their uncle was swimming in money. She said he removed a gun and placed it on her head and asked her to hand over her identity card and ATM which she did and he tied her hands with a rope. She tried to resist, but he slapped her and she called him Simo, his pseudo name. He led her to the office where she found Jackline, Mwende and Wafula under the watch of one man who was holding a knife. The man asked her to sit with the others and he asked for her phone so she gave him her infinix and a nokia phones. He left and returned with another man who had rastas. While under the table, she texted the OCS Mwatate and her uncle called Jackson and informed them they were under attack. She said that the man who had a gun asked where the safe was and she told him to go to the kitchen drawers and he left after which they locked the door from inside and remained inside for about 30 minutes and OCS came with police officers. She said that the man who had a knife was the 2nd accused, that the 3rd accused was the one who had rastas and Simon was already known to her. She recognized all of them in court. She said she was injured in the ribs and at the separate identification parades, she was able to identify the 3rd accused who had dreadlocks in the 1st parade, she identified no one in the 2nd parade while in the 3rd parade, she identified the 2nd accused. On 19th February 2017, she found Simon Onyango at the station. She was recalled on 22nd May 2019 for further cross examination by the 2nd and 3rd accused, but she essentially rehashed her earlier testimony.

14. PW3 Gladys Mwende Wambua, an employee of PW1 testified that on 8th February 2017 at about 7. 30pm a man suddenly emerged from the kitchen door. She said he was wearing a Marvin cap and he had a small bag, he told him his uncle was calling him in the sitting room. Followed by her son, she went to the office reception where she found her uncle’s hands and legs tied. He was facing down. She said the watchman was also tied. She said her son started screaming and Simon and the 2nd accused entered into the office. She said she knew Simon having previously worked with him for one and a half years from 2014. She said the 2nd accused held her child in the neck, covered his mouth and ordered him to keep quiet. She said they told her to choose 2 options, HIV or death and threatened to rape them demanding Kshs. 10,000,000/=. She was led to the main house, also they threatened to kill the watchman in their presence. They untied PW1 and left with him leaving her with her son and Jackline under the watch of the 2nd accused who was ransacking drawers from where he recovered some gemstones which he put in a bag. She said the incident lasted one hour. She said the 2nd accused cut CCTV Camera wires.

15. She testified that Simon brought PW2 into the room and Gitonga asked for her phone but she hid one phone in her biker. She said the 2nd accused ordered her to remove all the valuables in her bag, and he took her money, ATM card and identity card. She said she had Ksh. 6,500/= which the 2nd accused took and demanded PW2’s ATM and after he left and locked the door from outside, she managed to close it from inside. At that point PW2 texted the OCS Mwatate Police Station and her uncle Jackson Muteti, and after some time, their uncle knocked the door and they found a police vehicle in the compound and a vehicle belonging to Hassan Mwiti who had also been attacked by the thugs. She stated that the PW1’s Prado was not in the compound but shortly, the OCS received a call that the Prado had been abandoned along Voi Mwatate Road. She stated that on 17th February 2017 he attended an identification parade at the Voi Police Station, and in the 1st parade, she was able to identify the 3rd accused, in the 2nd parade she was not able to identify any one, and in the 3rd parade she identified the 2nd accused. On 19th February 2017, she was told Simon had been arrested. She identified all the accused persons in court. PW3 was recalled on 19th October 2018 for further cross-examination by the 2nd accused. She reiterated her earlier testimony.

16. PW4 Jackline Mwikali, a house girl working for PW1 testified that on the material day she was at the kitchen, when PW3 said someone was calling her and she left followed by her child when Simon whom she knew because they had worked together appeared in the kitchen, held her on her waist and ordered her not to scream. He told her they wanted to know where PW1 kept his money, but she said she did not know. She was taken to the office where her uncle was, and ordered to sit on the carpet where she found PW3 and her child who was crying and her uncle on the floor with his hands tied at his back, and his legs were also tied and he was facing the floor. Also, the watchmen had his hands and legs tied. She said her uncle had been pressed against the wall using a table. That the 1st accused untied PW1 and walked out with him, leaving them under the watch of the 2nd accused who was demanding to know where the safe was threatening to kill the watchmen in their presence so as to demonstrate their seriousness.

17. The 1st and 3rd accused took the watchman out leaving them with the 2nd accused who continued to ransack the drawers and he cut off CCTV cameras. They heard a vehicle hooting and shortly, the 2nd accused came in with PW2 and they took all her ATM, ID and some cash, but she was able to hide one phone. They were able to lock the door from inside after the attackers walked out and shortly, police came in. On 17th February 2017, she identified the 3rd accused in the 1st identification parade who had deadlocks. She said she could identify him because the lights were on all the time. However, in the 2nd parade she was not able to identify any one, but in the 3rd parade, she identified the 2nd accused whom she saw during the robbery because they spend considerable time with them and the lights were on.

18. PW5 Samuel Cherezugha Kuwna, PW1’s watchman of three and a half years, testified that the compound is fenced, it has security light and on the material day, PW1 arrived at 6. 25pm driving himself accompanied by his brother Michael and he opened the gate for him, but Michael left at 7 pm. At 7. 15pm, PW1 asked him to open the gate for some visitors. Upon opening, he found 3 people, one of whom he knew because he was a former employee of PW1 and PW1 welcomed them to his office within the compound but after about 5 minutes, the 1st & 3rd accused emerged and told him that PW1 wanted to see him. As he entered, they pushed him inside. He said the 2nd accused was armed with a knife and he ordered him to lie down and warned him that if he raised the alarm, they would shoot him. They tied his hands at his back and legs using a rope and he lied on the floor facing down. He said PW1 was also lying down facing down with his hands tied with a rope. He said the men brought Jackline and Mwende who were in the kitchen and a young boy and all were ordered to sit down. They untied PW1 and ordered him to take them to his bedroom and the 3rd accused armed with a knife led him, but, shortly, the 1st accused came with a one Mwiti, and they tied him with ropes and ordered him to lie down. They also brought a boy called Dishon and interrogated him and tied him with ropes.

19. He stated that after the attackers left, the young boy struggled and loosened his rope and he untied PW1 who switched on the alarm and after 30 minutes police officers came. On 17th February 2017, he participated in 3 identification parades. In the 1st parade, he identified the 3rd accused who had dreadlocks and a jeans shirt and is light skinned. In the 2nd parade, he identified no one, but in the 3rd parade he identified the 2nd accused whom he had seen during the raid. He stated that the 1st accused was known to him prior to the incident.

20. PW6, Hassan Mwiti stated that on the material day, at around 8pm, he went to PW1’s place, hooted, but there was no one to open the gate, so, he switched off the engine and entered through the small gate, only to meet a man holding a gun who called his name and told him he had brough himself to death. He said he held him by his shirt at the left shoulder and inside the house he saw the watchman and PW1 lying on the floor on their stomachs and their hands were tied using ropes. He also saw the 3rd accused who had Rastas holding a knife. He said he knew the 1st accused who used to work for PW1. He said they were asking for money and for the safe. They searched his pockets, took Kshs. 2,000/=, a Samsung phone and his car ignition keys. He identified his phone in court. He said it is the 1st accused who took his phone and he also demanded money and gemstones and he went to search his vehicle.

21. He said in his vehicle he had a smart phone, Samsung C700. He identified it in court. He said he saw them very well because the lights were on. He said the 1st accused went out and brought a young boy, tied his hands in the front, and after some time he heard a vehicle drive away. The young boy managed to untie himself and PW1 who locked both doors and switched on alarm systems and after sometime the OCS Mwatate Police Station came. He said his vehicle was still at the gate, but the thugs had gone with his ignition key. He stated that the Police were informed of an abandoned car along Voi-Mwatate road, and while at Mwatate they were told a mad man had been spotted carrying phones, and upon tracing him, he led them to the road side where he picked them and they recovered his small Samsung phone there.

22. PW7 No. 230037 CI David Muli testified that on 8thFebruary 2017, at 8. 30pm he received a text message from Queen Muteti stating that she had been invaded by thugs at PW1’s home. He said he called his driver James Kingoo and an officer called Kiptoo and asked them to go and pick him and they proceeded to the scene and on reaching the gate they found a vehicle which had been parked blocking the path to the compound. He said the alarm was ringing but there was no one at the gate. Mwiti recognized him through the window and he asked them to open. He said three girls were locked in an adjacent house with their hands tied at the back. He circulated the registration number of the Prado and after 10 minutes, the OCS Voi called and informed him the vehicle had been spotted parked by the road side about 3 kms from Voi Town along Voi-Mwatate Road. They proceeded to the scene where the vehicle had been parked and found the OCS Voi and his officers guarding the vehicle which was locked and had no keys. He called scene of crime officers to guard the vehicle. He said everyone at the scene was mentioning Simon who previously worked for PW1.

23. PW8, AP Sgt Zani F. Mwachofi attached to Kisinghau Police Post testified that on 16th February 2017 while on duty, he was informed that the shop of a one Irungu was being broken into. She called AP Angeline and they proceeded to the shop and on arrival, they found 3 people inside the shop. He said the lights inside the shop were on and the door was broken, but as they approached, they exited through the rear side door and escaped using motor bikes. They pursued them but they abandoned the motor cycles and ran into the bush. They recovered the 2 motor bikes and took them to the AP line and returned to the area. At 2am they started stopping and searching vehicles and at around 5am, a PSV came from Kasighau heading to Voi town and upon searching it, they found 4 people, a driver, a conductor and 4 men. She identified one of the persons as the one she saw in the shop and started to search him. The 4th one managed to escape. She recovered a pliers and a screw driver and a bunch of keys. She said they had a small bag and asked the driver to drive to Kasighau trading centre and called the owner of the Jirani Smart who identified his motor cycles. She also called CID Voi who came and arrested them.

24. PW9, ASP Eunice Maingi testified that prior to conducting identification parades, she explained to the 2nd accused the purpose of the parade and he said he had no objection, that he did not have a friend or an advocate and signed the form. She asked the witnesses if they were able to identify the suspects and if they were not able, they say so. She told them the suspects may or may not be in the parade. She said the 1st parade comprised of 8 people of similar physic, and, she asked the 2nd accused to choose a place and he opted to sit between numbers 3 and 4. She called PW1 who identified the 2nd accused by touching him. He said he saw him during the robbery. She escorted PW1 to the prosecution office to avoid contacts with the other witnesses. She also called Samuel Kuona Cherusonga who also picked the 2nd accused. He was also identified separately by Gladys Mwende, Jackline Mwikali Musembi and Queen Muteti, and after the parade the 2nd accused said he was satisfied by the parade and he signed the identification forms.

25. On 20th August 2019, a new Magistrate complied with the provisions of section 200 of the Criminal Procedure Code.3 The accused persons asked that the case proceeds from where it had reached.3Cap 75, Laws of Kenya.

26. PW10, Mr. Nelson Okello employed by Josca Networks as a Technical Assistant and Support based at Mombasa testified that he installs and repairs CCTV cameras and retrieves reports if required. He stated that they installed the CCTV and 8 cameras in 2015. He said he was called to the scene and he was able to save a footage and retrieved 4 with specific details relating to the case. He stated that the cameras pointed to the gate and the office, so it would show people entering into the gate and the office. He stated that the camera record at the central place at DVD (Digital Video Decoder), so, that is where he retrieved the information and put it in a disc and he gave the police a copy and he retained the original. He played the footage in court and produced it as an exhibit. Upon cross-examination, he explained that the camera shows three people entering at 7. 33 up to 7. 40 hours, that they had nothing in their hands but had a bag on their back. He stated that the cameras were cut at 7. 41pm. He said he did not come with certificate to the court.

27. PW11, CI David Kieti a scene of crime investigator took photos of PW1’s vehicle at the scene it had been abandoned. He produced them in court together with the certificate.

28. PW12 Sgt Joseph Benyini, the Investigating Officer, narrated how the 1st accused was arrested after being pursued up to the Tsavo national park. He said they never did an identification parade for the 1st accused because he was known to the complainant and the witnesses while the others were identified at the identification parade. The court reviewed the CCTV footage and the accused persons were identified. He also produced data from Safaricom.

29. Upon considering the prosecution evidence and the accused persons submissions, the trial magistrate concluded that the accused persons had a case to answer and put them on their defence. They all elected to give sworn defence.

30. The 1st appellant, who was the 2nd accused in the lower court, Fredrick Gitonga Mungania, in his sworn defence stated that on 1st November 2016 his employer sent him to Mombasa to do some work and he arranged with his girlfriend who was staying at Maungu that he would sleep there on his way to Mombasa, but later she told him she had relocated to Kasighau. He parked the vehicle at Maungu and proceed to Kasighau where he arrived at 8. 15pm and he spent the night at her place. He stated that the following day, he woke up at 6am, but on the way two administration police officers stopped the vehicle and he was asked to produce his identity card which he did, then they asked him what he was doing there and he was from Nyeri. He gave them his driving license, NHIF Card, KRA and NSSF card and employment letter. He was arrested, and later taken to Voi and he was subsequently charged in court. He said he did not know the 1st and 2nd accused. He said while in the cells he was asked to buy his freedom.

31. The 2nd appellant, Sephen Mutuku Kenga, stated that on 2nd November 2016, some AP’s ordered them to alight from a matatu on their way from Kasighau, they searched him and took his phone and he was held for 3 months. He said in the identification parade, he was placed among Ethiopians and he did not know what was happening. He said in the parade, he was the only person with dreadlocks.

32. The 3rd Appellant, Simon Onyango testified that he used to work at a spare parts shop at Mackinon. He said that on 16th November 2016 he arrived at Mackinon from Nyanza at his girlfriend’s invitation. He said that on 17th November 2016 he travelled to Taita Taveta and spent the night at his aunt’s place. He said he was handcuffed on 18th November 2016 and taken to Makina Police Post. He said his only problem was sleeping with someone’s wife. He said the following day PW1 came and told him he had not stopped seeing a one Cecilia Wambua. He said he was held up to 18th February 2017 when he was taken to Voi where he was led to a room where he was tortured and later he found himself at Voi Police Station where he was later charged. He said he wanted to rely on data that e never called the complainant.

33. After analysing the evidence and the law, the leaned magistrate was satisfied that the offence of robbery with violence was proved. Additionally, he was satisfied that the scene of the crime was well lit with security lights in the compound and that the appellants were properly identified. He also noted that the CCTV footage was played in court and he was persuaded that the 3 persons who were seen entering the compound were the accused persons. He evaluated the defences and he was not persuaded by their accounts. He convicted the appellants and sentenced them to serve 13 years for counts 1, and 3 without the option of a fine, and 13 years for count 2. All sentences are to run concurrently.

34. The appellants seek to upset both judgment and conviction. Some of the grounds cited by the 1st and 2nd appellants are identical and they can be condensed as follows: - whether the evidence of identification was sufficient; whether their defences were considered; whether there was sufficient evidence to support the charge; and those crucial witnesses were not called. All the appellants state the investigations were shoddy. Additionally, the 2nd appellant cited alleged breach of fair trial rights under Article 50 (2) (h) (k) of the Constitution and accepting the investigation officer’s evidence without his consent.

35. The grounds advanced by the 3rd appellant Mr. Simon Onyango are that the learned Magistrate erred in law and fact when he convicted him yet he was not at the scene; that he failed to adequately consider his defence; and that the investigating officers’ evidence was produced without his consent.

36. Each appellant filed written submissions. The 1st and 2nd appellants’ submissions are largely identical. On the question of identification, they submitted that the witnesses were not truthful because they did not consider the description of the attackers both in the initial report and in the statements. They submitted that the witnesses could not have managed truthful identification owing to surrounding circumstances considering that the ordeal was traumatizing and they were in a state of shock. They relied on Moses Munyua Mucheru v Republic4which held that in identification, the first report to the police should be put in the evidence so as to check whether or not a witness thinks he can identify the suspect and by what means. They argued that the purported identification was not free from error or honest mistake and cited criminal appeal no 228 of 19305 which held that identification can be poor even though it is given by a number of witnesses. They also cited Lemamba v Republic which held that identification conducted after accused persons have been arrested and remanded in custody is not very useful because witnesses tend to think that the police have arrested the right person. Reliance was placed on Ndungu Kimanmi v Republic6in support of the proposition that a witness should not give an impression that he is not straight forward. Additionally, the 2nd appellant alleged breach of his rights under Article 49 (f) (i) (ii) of the Constitution and failure to be accorded legal representation contrary to Article 50 (2)(h) of the Constitution and failure to be allowed to avail his witness.4CR APP No 63 of 1987. 5EACA.6{1979} KLR.

37. The 1st and 2nd appellants argued that crucial witnesses were not called to testify, such as the driver of the matatu, the watchman’s child and the insane boy’s parent. To buttress their argument, they cited Daitany v Republic7 which held that the prosecutor has general discretion to call someone as a witness, but if he does not call a vital witness, one risks the court presuming that the evidence if produced could have been prejudicial to the prosecution. Also, reliance was placed on Bukenya & others v Uganda8which underscored the need to call witnesses whose evidence appears essential to the decision.71950 23 EACA 493. 8CR App No. 68 of 1972.

38. They argued that it was the duty of the police to supply the booking from the police post where they were arrested. They cited Gachago Nganga v Republic9 which underscored the presumption of innocence in favour of an accused person in criminal cases and argued that the prosecution bears the duty to discharge the burden of truth. They dismissed the investigations as shoddy and for failing to interrogate the witnesses to clarify key issues.9CR APP No. 98 of 1995.

39. Lastly, they argued that the evidence on data produced by the Investigating Officer was produced against the law because he was not the maker of the document; that they did not consent to the production of the said evidence and that their defence was not considered.

40. The 3rd appellant also filed written submissions. He faulted the evidence placing him scene. He dismissed the prosecution evidence placing him at the scene as untruthful. He argued that the witnesses never gave descriptions or names of the attackers to the police in their initial reports and statements. He argued that mentioning hi name was an afterthought because he had an existing grudge with PW1, 2 & 3. He argued that the witness was in state of shock and could not have identified him in such circumstances. He relied on Moses Munyua Mucheru v Republic.10 Also, the 3rd Appellant submitted that his defence was not considered, that the Investigating Officer gave data records as evidence without his consent. Like the other appellants he also submitted that the investigations were shoddy.10CR Appeal No. 63 of 1987.

41. The Respondent’s counsel filed written submissions in response to the 1st and 2nd appellant’s appeals. After the 3rd appellant’s appeal was consolidated with the 1st and 2nd appellant’s appeals, he did not file further submissions as directed by the court. In his submissions, the Respondent’s counsel recalled the testimony of PW1 and argued that it was sufficiently corroborated by the PW2, PW3, PW4 & PW5. He also submitted that the identification parade was properly conducted. He submitted that the alleged failure to describe the assailants is immaterial since a proper identification parade was conducted including the circumstances under which the incident was reported to the police and the subsequent arrest of the appellants.

42. On the submission that crucial witnesses were not called, he cited section 143 of the Evidence Act11 which provides that no particular number of witnesses shall, in the absence of any particular provision of the law to the contrary, be required for the proof of any fact and argued that the prosecution called 12 witnesses whose evidence was cogent, consistent, and corroborated, and, that the defence did not rebut the said evidence. He submitted that no other evidence by any other witness would have persuaded the trial court on the innocence of the appellants.11Cap 80, Laws of Kenya.

43. On the alleged breach of Article 50 (2) (h), he argued that it has not been demonstrated how this right was breached nor was the issue raised during trial. On the submission that the evidence was contradictory, counsel submitted that the evidence tendered was cogent, consistent, and corroborated, and if any contradictions occurred, they were not material.

44. He submitted that the charge sheet was not defective, and even if it was, such a defect is curable under section 382 of the Criminal Procedure Code.12Lastly, on the submission that the appellant’s defence was not considered, he submitted that the trial court evaluated the evidence and it was persuaded that a prima facie case was established against the appellants. He argued that the appellants defence was considered at pages 246 to 250 of the Record of Appeal. On the quality of the investigations, he submitted that sufficient evidence was gathered which established the appellant’s culpability.12Cap 75, Laws of Kenya.

45. The 1st and 2nd appellants filed submissions in reply essentially replicating their earlier submissions and urged the court to allow the appeal.

Determination 46. I will first address the question whether the ingredients of the offence of robbery with violence were proved. The Court of Appeal in Johana Ndungu v Republic13 listed the ingredients of the offence or robbery with violence as follows: -13Criminal Appeal No. 116 of 2005 (UR).i.If the offender is armed with any dangerous weapon or instrument; orii.If he is in the company of one or more other person or persons, or;iii.If at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person.

47. Proof of any one of the above ingredients is enough to sustain a conviction under Section 296 (2) of the Penal Code.14 The assailants were armed with a pistol and knives. They violently robbed PW1, PW2 and PW6. They threated the ladies to choose HIV or death and also threatened to rape them. PW2 was injured in the ribs. With this uncontroverted evidence, the suggestion that the ingredients of the offence were not proved cannot stand.14See Olouch vs Republic{1985} KLR 549.

48. Before addressing the question of identification, it is important to recall that the quality of a witness' memory may have as much to do with the absence of other distractions as with duration.15 Human memory is not foolproof. It is not like a video recording that a witness needs only to replay to remember what happened. Memory is far more complex. Memory has been described as consisting of three stages: acquisition –15S v Henderson27 A 3d 872 (NJ 2011).“the perception of the original event"; retention - "the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval - the "stage during which a person recalls stored information."1616Lirieka Meintjes van der Walt, Judicial understanding of the reliability of eyewitness evidence: A tale of two cases,Fort Hare University, South Africa.

49. At each of the above three stages the "information ultimately offered as 'memory' can be distorted, contaminated and even falsely imagined."17 At each of these stages, memory can be affected by a variety of factors such as was held inS v Henderson:-1817Ibid.1827 A 3d 872 (NJ 2011).a.whether the witness was under a high level of stress. Even under the best viewing conditions, high levels of stress can reduce an eyewitness's ability to recall and make an accurate identification.b.whether a weapon was used, especially if the crime was of short duration. The presence of a weapon can distract the witness and take the witness's attention away from the perpetrator's face. As a result, the presence of a visible weapon may reduce the reliability of the subsequent identification if the crime is of short duration.c.how much time the witness had to observe the event. Although there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure to the perpetrator. In addition, time estimates given by a witness may not always be accurate because witnesses tend to think events lasted longer than they actually did.d.whether the witness possessed characteristics that would make it harder to make an identification, such as the age of the witness and the influence of drugs or alcohol. An identification made by a witness under the influence of a high level of alcohol at the time of the incident tends to be more unreliable than an identification by a witness who consumed a small amount of alcohol.e.whether the perpetrator possessed characteristics that would make it harder to make an identification. Was he or she wearing a disguise? Did the suspect have different facial features at the time of the identification. The perpetrator's use of a disguise can affect a witness's ability both to remember and identify the perpetrator. Disguises like hats, sunglasses, or masks can reduce the accuracy of an identification. Similarly, if facial features are altered between the time of the event and a later identification procedure, the accuracy of the identification may decrease.f.how much time elapsed between the crime and the identification? Memories fade with time. The more time that passes, the greater the possibility that a witness's memory of a perpetrator will weaken.g.whether the case involves cross-racial identification. Research has shown that people may have greater difficulty in accurately identifying members of a different race.h.whether the observation of the perpetrator was close or far. The greater the distance between an eyewitness and a perpetrator, the higher the risk of a mistaken identification. In addition, a witness's estimate of how far he or she was from the perpetrator may not always be accurate because people tend to have difficulty estimating distances.i.whether or not the lighting was adequate during the observation. Inadequate lighting can reduce the reliability of an identification.j.the confidence of the witness, standing alone, may not be an indication of the reliability of the identification, but highly confident witnesses are more likely to make accurate identifications. Even an identification made in good faith could be mistaken.

50. The fundamental aim of eyewitness identification evidence is reliably to convict the guilty and to protect the innocent. Is important to bear in mind the types of identification evidence. The common law recognized several categories of identification evidence because the potential dangers of identification evidence differ between the categories. One is Positive Identification Evidence which is evidence by a witness identifying a previously unknown person as someone he or she saw on a prior relevant occasion. Such evidence may be used as direct or circumstantial proof of an offence.19 The 3rd appellant, Simon Onyango previously worked for PW1. This evidence was not controverted. He was known to PW1, PW2, PW3 and PW4, PW5 and PW6. The evidence by these witnesses against the 3rd appellant, Simon Onyango is positive identification.19SeeFesta v R (2001) 208 CLR 593.

51. The second category is Recognition Evidence, which is evidence from a witness that he or she recognizes a person or object as the person or object that he or she saw, heard or perceived on a relevant occasion. The prosecution witnesses were able to recognize the appellants. There is uncontroverted evidence that the incident lasted over one hour and the lights were on all the time. Decisional law is in agreement that there is a special need for caution before accepting identification evidence. Significant considerations which largely depend on the facts of the case and may include the circumstances of the sighting; whether the person was known to the witness; the time that elapsed between the sighting and the reporting to police and any differences between the description of the person and their actual appearance.

52. Evidence from eyewitnesses plays an important role in all contested cases. However, as alluded to earlier, the memory is a fragile and malleable instrument, which can produce unreliable yet convincing evidence. Because mistaken witnesses can be both honest and compelling, the risk of wrongful conviction in eyewitness identification cases is high, and can result in injustices. Our system of justice is deeply concerned that no person who is innocent of a crime should be convicted of it. In order to avoid that, a court must consider identification testimony with great care, especially when the only evidence identifying the accused as the perpetrator comes from one witness. However, the law is not so much concerned with the number of witnesses called as with the quality of the testimony given. A guilty verdict is permitted, only if the evidence is of sufficient quality to convince the court beyond a reasonable doubt that all the elements of the crime have been proven and that the identification of the accused is both truthful and accurate.

53. As was held in Charles O. Maitanyi v Republic,20 it is necessary to test the evidence of a single witness respecting to identification, and, absence of collaboration should be treated with great care. In Kariuki Njiru & 7 others v Republic21 the court held that evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.20{1988-92} 2 KAR 75. 21Criminal Appeal no. 6 of 2001 (Unreported).

54. To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.

55. Properly obtained, preserved and presented, eyewitness testimony directly linking the accused to the commission of the offence, is likely the most significant evidence of the prosecution. While testing identification evidence of a single witness, great care and caution should be taken to ascertain whether the surrounding circumstances were favourable to facilitate proper identification. Authorities are in agreement that these include light, time spent with the assailant, clothes or any item that the witness may positively identify and whether the complainant knew the accused. Such evidence may be reinforced by sufficient collaboration. In absence of collaboration, the court needs to treat it with caution. In evaluating the accuracy of identification testimony, the court should also consider such factors as: -a.What were the lighting conditions under which the witness made his/her observation?b.What was the distance between the witness and the perpetrator?c.Did the witness have an unobstructed view of the perpetrator?d.Did the witness have an opportunity to see and remember the facial features, body size, hair, skin, color, and clothing of the perpetrator?e.For what period of time did the witness actually observe the perpetrator?f.During that time, in what direction were the witness and the perpetrator facing, and where was the witness's attention directed?g.Did the witness have a particular reason to look at and remember the perpetrator?h.Did the perpetrator have distinctive features that a witness would be likely to notice and remember?i.Did the witness have an opportunity to give a description of the perpetrator? If so, to what extent did it match or not match the accused, as the court finds the accused's appearance to have been on the day in question?j.What was the mental, physical, and emotional state of the witness before, during, and after the observation?k.To what extent, if any, did that condition affect the witness's ability to observe and accurately remember the perpetrator?

56. The trial court in assessing the demeanour of a witness is expected to make a finding as to the integrity, honesty and truthfulness of such witnesses not his or her boldness or firmness. The Court of Appeal in Toroke v Republic22 had this to say: -22{1987} KLR 204. “It is possible for a witness to believe quite genuinely that he had been attacked by someone he knows, yet be mistaken. So, the error or mistake is still there whether it be a case of recognition or identification.”

57. Identification parades are meant to test the correctness of a witness’s identification of a suspect. This position was appreciated in Njihia v Republic23 which held: -23{1986} KLR 422. “…If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course, if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”

58. The 1st and 2nd appellants faulted the identification parade on several fronts. They argued that the witnesses did not state that they could identify them at the time of recording their statements, or prior to the parades. This argument is attractive. But it collapses on the ground that other than the identification parade, there is also evidence of recognition as defined earlier, which is, where a witness states he could recognize a previously seen person. A common thread running across the prosecution evidence is that the witnesses spent more than one hour with the appellants and they were able to identify them.

59. For an identification parade to be fruitful and of evidential value, the identification rules must be complied with. Failure to adhere to the identification parade guidelines affects the evidential value of a resulting identification. The Court of Appeal in Samuel Kilonzo Musau v Republic24 stated: -24{2014} e KLR.“The purpose of an identification parade, as explained in Kinyanjui & 2 Others v Republic (1989) KLR 60, “is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion.” It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.”

60. The procedures governing police identification parades are provided for in the Police Force Standing Orders pursuant to the National Police Service Act.25These procedures were explained in R v Mwango s/o Manaa26 and Ssentale v Uganda.27 The rules include: -25Act No. 11A of 2011. 26{1936} 3 EACA 29. 27{1968} E.A.L.R 365. a.The accused has the right to have an advocate or friend present at the parade;b.The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness;c.Witnesses should be shown the parade separately and should not discuss the parade among themselves;d.The number of suspects in the parade should be eight (or 10 in the case of two suspects);e.All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race;f.Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; andg.As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.

61. Identification of a suspect in any criminal offence is always a pivotal question and whenever it arises, the trial court has to satisfy itself, before convicting. The evidence must be such that threshold set by the rules and decided case law has been met. The evidence must leave no doubt that the suspect was positively identified. If the police force standing orders in respect of conduct of identification parades are flouted, the value of the evidence of identification depreciates considerably. In Ajode v Republic28 the Court of Appeal held that before an identification parade is conducted, and for it to be properly conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade. In John Mwangi Kamau v Republic29 the Court of Appeal held: -28{2004} 2 KLR 81. 29{2014} e KLR.“15. Identification parades are meant to test the correctness of a witness’s identification of a suspect. See this Court’s decision in John Kamau Wamatu v Republic – Criminal Appeal No. 68& 69 of 2008. In this case Eliud, George and Joseph testified that they had indicated in their initial reports that they had gotten impressions of the assailants and they could identify them…”

62. A cautionary rule with particular application to identification evidence was formulated by Dowling, J. in the much-cited case R v Shekele.30 It is worth repeating:-30R. v. Shekele and another 1953 (1) (SA) 636 (T). Although judgement was delivered in this case in 1947, it was not reported until 1953. In the period between 1947 and 1953 it was frequently referred to, in its unpublished form.“Questions of identification are always difficult. That is why such extreme care is always exercised in the holding of identification parades - to prevent the slightest hint reaching the witness of the identity of the suspect. An acquaintance with the history of criminal trials reveals that gross injustices are not infrequently done through honest but mistaken identifications. People often resemble each other. Strangers are sometimes mistaken for old acquaintances. In all cases that turn on identification the greatest care should be taken to test the evidence. Witnesses should be asked by what features, marks, or indications they identify the person whom they claim to recognise. Questions relating to his height, build, complexion, what clothing he was wearing and so on should be put. A bald statement that the accused is the person who committed the crime is not enough. Such a statement, unexplored, untested and uninvestigated, leaves the door wide open for the possibility of mistake. Where the accused is an ignorant native who is unrepresented by counsel or attorney and who is therefore unable himself to probe the evidence of identification and where the prosecutor has not done so, the court should undertake this task, as otherwise grave injustice may be done.”

63. The central element of the cautionary approach recommended in the above case is that identification evidence by an 'eyewitness should not be accepted unless it has been rigorously tested. The greatest care should be taken to test identification evidence, and a witness may be tested in cross-examination by requiring him to describe again the appearance of the person(s) he purports to identify. Where such identification rests upon the testimony of a single witness and the accused was identified at a parade which was conducted in a manner which did not guarantee the standard of fairness observed in the recognised procedure, but was calculated to prejudice the accused, such evidence standing alone can have little weight.

64. The witnesses spend over one hour with the appellants.The lights were on. The assailants’ faces were not covered. The 1st appellant was identified as the one who was brandishing a gun, the 3rd appellant had Rastas. During the attack, the assailants kept on talking to the complainants and the witnesses. All the witnesses were able to identify the 1st and 2nd appellants. The 3rd appellant was already known to PW1 and the other victims of the attack having previously worked for PW1. I am satisfied that the identification evidence was free from error and that it was sufficiently corroborated.

65. The other ground urged by the appellant’s is that the prosecution failed to call crucial witnesses such as the young boy and the father of the mad boy. They argued that the omitted evidence of these two witnesses was essential. Section 143 of the Evidence Act31 provides that “No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.” The question of failure by the prosecution to call witnesses has been the subject of numerous determinations by our superior courts. The Court of Appeal in Julius Kalewa Mutunga v Republic32 stated: -31Cap 80, Laws of Kenya.32Criminal Appeal No. 31 of 2005“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”

66. The leading authority on this issue is Bukenya & Others v Uganda33 in which the East African Court of Appeal held: -33{1972}E.A.549. i.the prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.ii.The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case.iii.Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.

67. In the above case, the court was categorical that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case. The significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. There are circumstances in which it has been recognized that such an inference is not available or, if available, is of little significance.34 This position was cited with approval by Miler JA in Hewett v Medical Board of Western Australia.3534See Mahoney J. in Fabre v Arenales{1992} 27 NSWLR 437, 449-450,Priestly and Sheller JJA agreeing).35{2004} WASCA 170.

68. The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown in the pleadings or by the course of the evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. This position was upheld in the following cases, namely; Schellenberg v Tunnel Holdings,36 Ronchi v Portland Smelter Services Ltd37 and Hesse Blind Roller Company Pty Ltd v Hamitovski38 and its reiterated in Cross on Evidence.3936Cubillo (No. 2) 35537{2005} VSCA 8338{2006} VSCA 121 2839Supra at page 1215

69. When no challenge is made to the evidence of witnesses who are called, the principle in Jones v Dunkel cannot be applied to make an inference in respect of other witnesses who could have been called to give the same evidence.40 A look at the record shows that the prosecution testimony on the involvement of the appellants has not been dislodged. There is the direct evidence of PW1, 2, 3, 4, 5 & 6 which puts the appellants at the scene. As explained in Cross on Evidence41 and the authorities cited above, the rule does not require a party to give merely cumulative evidence. In order for the principle to apply, the evidence of the missing witness must be such as would have elucidated a matter.42The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case. The circumstances of this case do not show the alleged uncalled witnesses could have added value to the case.40See Cross on Evidence, Supra.41Supra.42See Payne vs Parker, 202 Cubillo )No. 2) 360.

70. In any event, it is established law that a conviction can be based on the testimony of a single-eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passed the test of reliability in basing conviction on his testimony alone.43 The Court of Appeal of Uganda in Okwang Peter v Uganda44 held: -43See Anil Phukan vs State of Assam{1993} AIR 1462. 44Criminal Appeal No. 104 of 1999. “Subject to certain 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 in respect to identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it is circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from possibility of error.”

71. It is always competent to convict on evidence of a single witness if that evidence is clear and satisfactory in every respect. The law is also clear that there is no particular number of witnesses required for proof of any fact.45 Further, it has not been shown that the evidence tendered had gaps which required to be filled. I find no reason to make adverse inference in the circumstances of this case.45See Section ..... Evidence Act, Cap 80, Laws of Kenya.

72. It was argued that the appellants defence was not considered. However, the defence must be weighed against the evidence offered by the prosecution. The accused has only what is referred to as the evidential burden which means the duty of adducing evidence or raising the defence of alibi.46 Once an accused person discharges the evidential burden of adducing evidence of alibi, it is the duty of the prosecution to disprove it. The duty of the court is to test the evidence of alibi against the evidence adduced by the prosecution and if there is doubt in the mind of the court, the same is resolved in favour of the accused. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating the accused is true. The correct approach is to consider the alibi in light of the totality of the evidence in the case and the courts impression of the witnesses. It is acceptable in totality in evaluating the evidence to consider the inherent probabilities and improbabilities. The proper approach is to weigh up all the elements, which point towards the guilt of the accused against all those, which are indicative of his innocence. The court is required to take proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.46See OrteseYanor& Others vs The State{1965} N.M.L.R. 337.

73. Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.47 A guilty verdict is permitted, however, only if the evidence is of sufficient quality to convince the court beyond a reasonable doubt that all the elements of the charged crime have been proven, that the evidence irresistibly points to the accused, and that the evidence is both truthful and accurate.47Duhaime, Lloyd, Legal Definition of Balance of Probabilities, Duhaime’s Criminal Law Dictionary.

74. By requiring the trial court to consider and weigh all evidence is not meant that the judgment of the trial court must also include a complete embodiment of all evidence led, as if it comprises a transcript of the proceedings. All it means is that the summary of the evidence led must indeed entail a complete embodiment of all the material evidence led.48 A reading of the judgment leaves no doubt that the trial Magistrate carefully considered the appellants’ defenses.48Mofokeng vs S(A170/2013) [2015] ZAFSHC 13 (5 February 2015).

75. A careful evaluation of the entire trial records leaves no doubt that the trial was conducted properly in accordance with the law and all the legal and procedural safeguards were observed. It follows that the argument citing violation of the appellant’s constitutional rights are unmerited.

Conclusion 76. Flowing from my analysis and conclusions on all the issues discussed above, it is my finding that the trial court did not misdirect itself in returning a finding of guilty. I find that the conviction is supported by evidence, so, I find no reason to disturb it.

77. As for the sentence, I note that the appellants were sentenced to serve 13 years for each count, and, the sentences to run concurrently. Considering the offence, the manner in which it was committed, it is my view that the sentence of thirteen years for each of the three counts to run concurrently is lenient. I find no reason to temper with it. The upshot is that I uphold the conviction and sentence and dismiss these three consolidated appeals. However, in computing the prison term, the period the appellants were in police custody from 2nd November 2016 and subsequently in remand prison up to 4th April 2020 when they were convicted shall be factored in the computation.Right of appeal 14 days

SIGNED, DATED AND DELIVERED VIRTUALLY AT VOI THIS 4TH DAY MARCH 2022JOHN M. MATIVOJUDGE