[2023] KECA 1615 (KLR)

Muriuki alias Shoto v Republic (Criminal Appeal 93 of 2017) [2023] KECA 1615 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1615 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Criminal Appeal 93 of 2017

W Karanja, J Mohammed & AO Muchelule, JJA

November 10, 2023

Between

Muchoki Muriuki alias Shoto

Appellant

and

Republic

Respondent

(Being an appeal against the orders from the judgment and decree of the High Court at Nanyuki (M. Kasango, J.) dated 24th May 2017 in High Court Criminal Appeal No. 77 of 2016)

Judgment

1. The appellant, Muchoki Muriuki, alias Shoto, was arrested and arraigned together with Peter Ngotho Nduati before the Nanyuki Chief Magistrate’s court vide Criminal case No.224 of 2013. He was tried, found guilty and was convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to suffer death.

2. A brief background on the facts leading to the case is that Peter Ngotho Nduati, Lawrence Kaberia, Muchoki Muriuki alias Shoto, and Nahashon Kariuki Ritho were jointly charged before the subordinate court but before the conclusion of the trial, Lawrence Kaberia passed on and the matter proceeded against the three others. It was the prosecution's case that the three persons named above on the night of 25th-26th March, 2013 at Embori farm in Buuri District of Meru County while armed with offensive weapons namely metal bars and pangas robbed Livingstone Kalulu and Elias Kimathi.

3. Peter Ngotho Nduati, (Peter) one of the accused persons before the trial court had hired a lorry reg. no. KAS 956Z and its trailer ZC2531 from its owner, Andrew Nyaga (PW5), whom he knew before. He told P.W. 5 that the lorry was to be used to transport wheat from Timau to Nairobi. The lorry was being driven by PW8 (Charles) The three of them left for Timau and Charles was informed that they would actually be transporting sheep and not wheat as indicated earlier.

4. Meanwhile, at the Embori farm in Timau, it was just a normal evening. The security officer at the farm had organized Elias Kimathi (PW1) and Livingstone Kalulu to guard section 3A of the farm. In the course of routine patrols, the witnesses noticed that section 3A’s gate was open and the sheep were missing and the herder's house had been broken into. An alarm was raised and they started looking for the sheep.

5. Meanwhile, as Charles was driving to another section to get sheep, at a junction within the farm they spotted a patrol vehicle. Upon seeing the patrol vehicle, they all jumped out and ran away leaving the lorry behind. The lorry driver hid himself under the lorry but he resurfaced later and was arrested and locked up at Timau police station. The other accused persons were also arrested later. The owner of the lorry was summoned to the police station where he recorded his statement and explained how his lorry had been hired to ostensibly transport wheat.

6. In their defence, Peter Ngotho Nduati (DW1) the first accused person denied being involved in the robbery. He denied ever hiring a lorry for transport and also denied having been issued with a livestock transportation permit as alleged. He informed the Court that on the alleged date of the robbery, he was in Nanyuki attending training in agriculture and he was not involved in any livestock business.

7. In his defence, the appellant (DW2) testified that he was arrested while on his farm in Karatina, two months after the incident. He denied being part of the people who broke into Embori farm and stole sheep.

8. After considering the evidence adduced before the court, the trial magistrate held that the elements of the offence of robbery with violence were proved and that the stolen sheep and the victims of the robbery had been assembled to section 3A of the farm and the lorry hired by Peter Ngotho Nduati (DW1, 1st accused) had been at the farm with the intent of collecting the same sheep. The chain of events formed an unbroken link which led to the finding that the 1st and 3rd accused persons participated in the said robbery on the material night. The two were jointly found guilty, convicted and sentenced to death.

9. Aggrieved by the decision of the trial magistrate, the two appealed to the High Court in Nanyuki against both conviction and sentence. The two appeals were consolidated. The appeal was heard by way of written submissions.

10. The learned Judge upon re-evaluating and re-analysing the evidence before the trial court held that Charles's (PW8) evidence directly connected the appellant to the offence. He had joined the other suspects at Naromoru and they travelled together to Timau and to Embori farm under the directions of Peter. Therefore, although Muchoki had been identified by a single witness, it was sufficient to prove that he was part and parcel of the plan to steal sheep from Embori farm. Further, that although the charge was duplex it did not embarrass or prejudice him. The prosecution was able to prove the robbery in respect of Elias who had testified but had failed to prove it in respect of Kalulu who did not testify.

11. Additionally, it was held that Charles was not an accomplice in the robbery as alleged by the appellant herein. Though the trial magistrate had shifted the burden of proof to him in regard to his alibi defence, the same had been determined and held that the evidence of Charles had placed him at the scene in Embori farm thus the alibi defence could not suffice. In the end, the learned Judge found the appeal devoid of merit and dismissed it. The trial court’s conviction was upheld and the sentence was confirmed.

12. The appellant herein was once again dissatisfied with the decision of the High Court and is before us for a second bite of the cherry.

13. His homemade grounds are, inter alia, that the learned Judge erred in law and facts in relying on identification evidence at the scene of the crime which was not proved; upholding the conviction on the basis that the offence was proved; failing to find that the prosecution failed to avail essential witnesses and failing to consider his defence which was not objected to by the prosecution.

14. In his supplementary memorandum of appeal, filed subsequently by his counsel, the appellant raises grounds that the learned Judge erred;a.in law in affirming a decision of the lower court without complying with section 200(3) of the Criminal Procedure Code when Hon. E. Ngigi Senior Resident Magistrate took over from Hon. E. Bett, Senior Resident Magistrate and when judgment was further delivered by a different magistrate;b.affirming the decision of the lower court and failing to hold that the appellant's right to an advocate and to be informed of his right under article 50(2)(g) and (h) of the Constitution were violated.c.placing reliance on the evidence of Charles Wachira (PW8) when his conduct and participation in the offence made him an accomplice;d.affirming the trial magistrate’s rejection of the appellant’s alibi defense despite shifting the burden on the appellant;e.failing to hold that the prosecution had not proved its case beyond reasonable doubt andf.that the mandatory death sentence under section 296(2) of the Penal Code and or the commuted life sentence is unconstitutional and that it took away the judicial officer’s discretion in sentencing.

15. At the plenary hearing of the appeal on 16th November, 2022 learned counsel Mr. Wahome appeared for the appellant while Mr. Ng’etich represented the state.

16. Placing reliance on the decision in Ndegwa v. Republic [1985] KLR 534 and Abdi Adan Mohammed v. Republic [2017] eKLR. Mr Wahome submitted that section 200 of the Criminal Procedure Code (CPC) had not been complied with. This was because when Hon. E. Ngigi took over the trial from Hon. E. Bett the appellant was not informed of his right. There was no compliance with section 200(3) and it was made worse by judgment being delivered by a different magistrate. The learned Judge failed to re-evaluate the evidence, if she had done so, then this error could have been detected and addressed.

17. On the evidence of Charles (PW8) counsel submitted that the witness was an accomplice since he could not explain what he was doing at the farm at night and that it was an error to rely on his evidence.

18. Further the alibi defence was wrongly rejected. The trial magistrate had shifted the burden on the appellant contrary to the law. Counsel referred us to the decision in Kiarie v. Republic [1984] KLR 739.

19. Lastly, in regard to the death sentence, counsel argued that the same was unconstitutional for the reason that it was contrary to Article 25(C) and Article 50 of the Constitution and he urged us to consider the time he has been behind bars since the 15th March 2013.

20. In opposing the appeal, Mr. Ng’etich argued that though there was non-compliance with section 200(3) of the CPC, it was not fatal for the prosecution case and that when the appeal was heard at the High Court the issue was not raised. He relied on the decision in Abdi Aden Mohammed v. Republic (supra).

21. We have considered the appeal, the submissions, and the authorities relied on. Being a second appeal, we are confined to a consideration of matters of law by reason of section 361 of the CPC. In Karingo v. Republic [1982]KLR 213 the Court stated;“A second appeal must be confined 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 test to be applied on the second appeal is whether there was any evidence on which the trial court finds as it did. (Reuben Karari s/o Karanja v. R(1950)17 EACA 146)’’

22. On non-compliance with section 200 of the CPC, and the right of the appellant to have an advocate, we have confirmed from the record that indeed, the appellant had legal representation before the High Court. The proceedings are clear that the appellant herein was represented by learned counsel, Mr. Kimani Njuguna who was present throughout the hearing. The assertion by Mr. Wahome that the appellant was unrepresented, therefore, lacks basis. We note further, that the issue of non-compliance with section 200 of the CPC was not raised before the High Court, and this denied the learned Judge an opportunity to address her mind to the issue and make a determination on the same. That issue cannot be raised here for the first time.

23. Turning to the ground that the trial magistrate relied on the evidence of Charles Wachira (PW8) to hold that the appellant was part of the plan and participated in the robbery, yet the witness was an accomplice, we note that the question as to whether the witness was an accomplice was considered and determined by both courts below and they found that he was not. These being concurrent findings of fact by the two courts below, we are enjoined to defer to them.

24. The appellant faulted the trial magistrate’s rejection of the alibi defence, asserting that the trial magistrate had shifted the burden of proof to him. There is no burden of proof on the accused to prove an alibi. If there is a possibility that the alibi could be true then the prosecution has failed to discharge its burden of proof and the accused person must be given the benefit of the doubt. In Kiarie v. Republic (1984) KLR, this Court stated:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…’’

25. As held by the learned Judge, the trial magistrate erred in shifting the burden of proving an alibi on the appellant. In an alibi defence, based on the appellant's testimony, the same can either strengthen or weaken the defence. A successful alibi defence is one that rules out the accused, in this case the appellant, as the perpetrator of the offence. The prosecution has the burden to displace any defence of an alibi and place the accused person at the place and time the offence was committed by either the accused or his accomplices. See Republic v. John Kimita Mwaniki [2011] eKLR. The appellant testified that he was at home with his wife. However, the evidence of Charles (PW8) placed the appellant in the lorry that ended up at Embori farm. Therefore, the alibi defence did not cast doubt. The error by the trial magistrate was cured by the determination of the issue by the learned Judge, and like the learned Judge held we find that the clear evidence by Charles displaced the alibi defence proffered by the appellant.

26. We find that the prosecution discharged its burden and proved its case beyond reasonable doubt. The conviction of the appellant is upheld.

27. Mr. Wahome argued that the mandatory death sentence was unconstitutional and the same violated his client’s right to a fair trial as provided under Article 25(C) of the Constitution. He nonetheless dropped that ground towards the end and we shall not dwell too much on the issue, save for saying that, there is no doubt that our Constitution does not outlaw the death sentence, and the same cannot therefore be unconstitutional. Moreover, the Supreme Court in its decision in Francis Karioko Muruatetu and another v. Republic [2017] eKLR, affirmed that what is unconstitutional is not the death sentence, but the mandatory aspect of the sentence itself. The decision also gave the courts discretion to consider the peculiar circumstances of each case, including the mitigation and impose the appropriate sentence.

28. Mr. Wahome entreats us to exercise our discretion and review the sentence imposed on the appellant, giving due consideration to his mitigation and the fact that he has been in custody since his arrest. He also requested us to deal with the resentencing instead of remitting the matter back to the trial court for a re-sentencing hearing.

29. The sum total of the above is that we find no merit in the appeal against conviction and we dismiss it accordingly. The appeal on sentence is, nonetheless, allowed. Having considered the circumstances surrounding this case, the appellant’s mitigation and the time he has spent in incarceration since his arrest, we deem it just to set aside the death sentence, which we hereby do, and substitute therefor, a sentence of 12 years imprisonment from the date of plea, the appellant having remained in custody throughout his trial.

DATED AND DELIVERED AT NYERI THIS 10TH DAY OF NOVEMBER, 2023. W. KARANJA…………………………JUDGE OF APPEALJAMILA MOHAMMED………………………………JUDGE OF APPEALA. O. MUCHELULEI certify that this is a true copy of the original.DEPUTY REGISTRAR…………………………JUDGE OF APPEAL1