[2022] KEHC 10451 (KLR)

Murimi v Republic (Criminal Appeal E056 of 2021) [2022] KEHC 10451 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10451 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E056 of 2021

RPV Wendoh, J

May 19, 2022

Between

Stanley Murimi

Appellant

and

Republic

Respondent

Judgment

1. Stanley Murimi, was convicted by Principal Magistrate Kehancha for the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the charge are that on 4/4/2020 at [Particulars withheld] Area in Mabera Sub County Migori County, robbed Sarah Awino Omondi two mobile phones, make Ray and Nokia and Kshs 13,500 and immediately before the time of such robbery, wounded the said SA.

2. The appellant also faced a second charge of rape contrary to section 3(1)(a)(c) as read with section 3 of the Sexual Offences Act in that on the same date, he unlawfully caused his penis to penetrate the vagina of SAO.

3. Upon conviction, the appellant was sentenced to death on Count I and Count II was left in abeyance.

4. The appellant is dissatisfied with the judgment of the court and preferred this appeal based on grounds found in his undated memorandum of appeal which are as follows:-1. That the offence of robbery with violence was not proved to the required standard;2. That the court failed to consider article 50(2)(g)(h) of the Constitution of Kenya;3. That he was not identified as the culprit;4. That the sentence meted on the appellant is harsh and excessive.

5. The appellant also filed submissions in support of his appeal on 22/3/2022. He prays that the conviction be quashed and sentence set aside.

6. In support of the grounds, the appellant submitted that the ingredients of the offence of robbery with violence as set out by the Court of Appeal in Johana Ndungu vs. Republic (1996) eKLR were not proved; that the evidence on identification was not sufficient to support the charges.

7. Mr. Kimanthi, the learned prosecution counsel filed submissions in reply on 1/4/2022. Counsel opposed the appeal and urged that the offence of robbery with violence was proved to the required standard by the testimonies of PW1, PW2, PW3 and PW4; that the trial court complied with article 50(2)(g) of the Constitution when the said provisions were explained to appellant before plea was taken; that the appellant was properly charged with two separate offences though committed at the same time and the sentence was not harsh. He urged the court to dismiss the appeal.

8. The prosecution called a total of six (6) witnesses in support of their case whereas the appellant gave an unsworn statement in his defence.

9. This being a first appeal, this court is called upon to exhaustively examine all the evidence tendered before the trial court, analyse and evaluate it and make its own conclusions and determinations. The court in doing so has to take into account the fact that it neither saw nor heard the witnesses testify. The court is guided by the decision of Okeno vs. Republic(1972) E.A. 32 where the court reiterated the above guidelines. The court stated this:“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 respectively identification especially when it is known that the conditions for owing a correct identification were difficult. In such circumstances what is needed is other evidences, whether it be circumstantial or direct, pointing to the guilty, 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.”

10. PW1 SAO (PW1) the complainant, testified that she was asleep in her house on the night of 4/4/2020 about 3:00 am when she suddenly heard somebody next to her bed, untucking her net. He ordered her quiet, demanded her phones and took her two (2) phones. He demanded for money and she directed him to the bag in the sitting room. He also took other items from the house. He also ordered her to have sexual intercourse with her; that he was armed with a knife, a machete, bows and arrow. He stayed at her door step for some time and warned her against raising alarm. She noticed at about 5:30 am that he had left and that is when she raised alarm and neighbours came to her rescue but the robber had gone. She said that at the time, the electric power had disappeared for two (2) weeks from her house. She reported to the police station and reported that she was able to identify the robber. On 7/4/2020, she spotted the appellant while sitting at the stage, saw which home he entered and called the police. The appellant was arrested and that later she was informed that her solar radio and wallet were recovered. PW1 stated that the appellant was wearing the jeans he had worn on the day of the robbery.

11. PW2 RGA, the complainant’s eight (8) year old daughter gave unsworn evidence due to her tender age. She testified to somebody having gone to their house and demanded money and phones from her mother.

12. PW3 Salome Kiage the complainant’s landlady heard screams emanating from PW1’s house on 4/4/2020 about 6:00 am and learnt from PW1 that she had been robbed and raped.

13. PW4 Chacha Charles, a nursing officer then at Bugumbe Hospital examined the complainant. She had no injuries to her genitalia but he filled PCR forms.

14. PW5 PC Mwaniki Mureithi told the court that on 8/4/2020 he met the appellant at Mabera acting on information, and arrested him.

15. PW6 Senior Sergeant Jared Ngale of Mabera Police Post,is the investigation officer in this case. He retrieved the cloth which PW1 said the Appellant wiped himself with after raping her and receipts for the stolen phones.

16. I have had a look at the court record and to the shock and amazement of this court, there is no judgment written by the trial court as required by section 169 of the Criminal Procedure Code. Section 169 Criminal Procedures Code provides as follows:“1)Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the directions of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.2)In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which the accused person is convicted, and the punishment to which he is sentenced.3)In the case of an acquittal, the judgment shall state the offence of which, the accused person is acquitted, and shall direct that he be set at liberty.”

17. The trial magistrate did not review the evidence of the witnesses. The judgment only indicates that he had considered the evidence of the prosecution witnesses, the defence, the offence allegedly committed and listed five (5) issues and convicted the accused for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. The judgment is contained in 16 sentences. The magistrate did not set out the points for determination. He did not evaluate the evidence nor did he give reasons for arriving at the decision to convict the appellant for the offence of robbery with violence. This judgment offends section 169 of the Criminal Procedure Code.

18. On appeal, the court is required to consider the grounds of appeal, the evidence on record and the court’s findings. In this case, no findings have been made by the trial court. The decision was made in the abstract. Although both the appellant and respondent did not question this “ex-tempore judgment” which is very irregular, this court cannot close its eyes to it.

19. For example, the appellant complained that he was not properly identified. Without a judgment, this court has no idea how the court arrived at the decision that the offence had been proved meaning that the appellant was properly identified. Further, the respondent submitted that the charge was not proved to the required standard of beyond reasonable doubt. That conclusion is without basis as the court never analysed the evidence on record to determine whether or not the evidence on record was sufficient to support a conviction. For the reason that no judgment envisaged under section 169 of the Criminal Procedure Code, it is my view that the conviction by of trial court cannot stand.

20. The appellant challenged the conviction on the basis that identification of the appellant was not full proof. The offence took place at 3:00 am. The complainant was alone at the time of attack. She is the single identifying witness. The law is settled that where the court entirely relies on evidence of a single identifying witness under unfavourable conditions, it must receive it with great caution. This is because mistakes can be made in such instances. In R v Turnbull & Others(1976) 3 ALLER 549, the court gave useful guidelines on what courts should consider in cases of identification under unfavourable conditions. In the case of Abdallah Bin Wendoh & another v Republic(1953) EACA 166, the East African Court of Appeal stated as follows:-“A conviction resting entirely on identity invariably causes a degree of uneasiness, and as Lord Gardner, LC said recently in the House of Lords in the course of a debate on S 4 of the Criminal Appeal Act 1966 of the United Kingdom which is designed to widen the power of the court to interfere with verdicts;‘There may be a case in which identify is in question, and if any innocent people are convicted today I should think that in nine cases out of ten – if they are as many as ten – it is in a question of identify.’That danger is of course, greater when the only evidence against an accused person is identification by one witness and although no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safer to act on such identification.”“In this case there is no other evidence circumstantial or direct. The decision must turn on the need for testing with greatest care the evidence of this single witness. Is that what the courts below really did? It must be emphasized that what is being tested is primarily the impression received by the single witness at the time of the incident. Otherwise, if there was no light at all, identification would have been impossible. As the strength of the light improves to great brightness, so the chances of a true impression being received improves. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and it (sic) position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by there would have been a careful inquiry into these matters by the committing magistrate, state counsel and defence counsel---------There is a sound line of inquiry which ought to be made and that is whether the complainant was able to give such description or identification of his or her assailants to those who came to the complainant’s aid, or to the police.”

21. From the above decision some of the considerations are the intensity, of the light the nature of the light, how long the witness had the suspect under observation etc.

22. In the instant case, the complainant was asleep when she suddenly woke up to a man standing besides her bed, untucking her net. She told the court that the man demanded for phones and he took them. She then told court that she managed to identify the appellant from the light on the mobile phone. However, she did not explain to the court at what stage she used the phone, if the appellant took the phones once he woke her up; which part of the appellant did she see and for how long?. PW1 failed to explain how she was able to see the robber and I find that her identification of the assailant was not full proof.

23. PW1 also talked of the robber having won black jeans and that he wore them on the date of arrest. However, black jeans are a common apparel and there was nothing special about the said jean trouser.

24. The appellant testified that she was raped. The police retrieved the cloth that the assailant used to wipe himself after the rape. It would have been expected that the investigating officer would take the cloth to the Government Chemist for analysis to determine whether the appellant was the culprit or not. This is evidence that would have helped corroborate PW3’s evidence if indeed the appellant was the culprit. However, the investigation officer failed to act on that very important evidence leaving a gap in the prosecution case.

25. PW1 also testified that she was informed that some of her property was recovered. However, PW6 never testified to anything having been recovered nor were the said exhibits produced in evidence. That was important evidence that would have helped link the appellant to the offence. Again, that evidence was left in abeyance.

26. In absence of corroborative evidence to PW1’s testimony, I find that the evidence against the appellant is wanting and could not have been a basis for a conviction.

27. For all the above reasons, I find that the prosecution did not prove its case to the required standard of beyond all reasonable doubt. I hereby quash the conviction and set aside the sentence. The appellant is set at liberty forthwith unless otherwise lawfully held.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 19TH DAY OF MAY, 2022R. WENDOHJUDGEDelivered in the presence of:Mr. Omooria for StateAppellant presentMs. Nyauke Court Assistant