[2022] KEHC 14120 (KLR)

Mutegi v Republic (Criminal Appeal 11 of 2020) [2022] KEHC 14120 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14120 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal 11 of 2020

TM Matheka, J

October 19, 2022

Between

Morris Mbugua Mutegi

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of the Principal Magistrate’s Court at Nakuru (Hon. F. K. Munyi dated 30th April, 2020 in the Chief Magistrate’s Criminal Case Number 3101 of 2020)

Judgment

1. The appellant was charged jointly with Peter Mbaabu Mutembei in Nakuru Chief Magistrate’s Criminal Case Number 3101 of 2012 with the offence of Robbery with Violence Contrary to Section 295 as read with 296 (2) of the Penal Code.

2. In the alternative they were charged with the offence of Handling Stolen Motor Vehicle Contrary to Section 322 (2) of the same code.

3. The particulars are that on the September 8, 2012 at Nakuru Rift Motors’ bazaar in Nakuru District within Rift Valley Province jointly with others not before court while armed with dangerous weapon namely pistol they robbed Michael Nganga Josphat of motor vehicle registration number xxxx Toyota Premio valued Ksh 1. 25 million, one mobile phone make Nokia valued Kshs 14,000/=, cash Kshs 15,000/= all valued at Kshs 1,282,900/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Michael Nganga Josphat.

4. In the alternative charge; that on September 8, 2012 at Kiti village in Nakuru within Rift Valley Province, otherwise than in the course of stealing, they dishonestly assisted in the retention of Motor vehicle Registration Number xxxx for the benefit of one Njoroge knowing or having reasons to believe it to be stolen motor vehicle.

5. After a full trial the appellant together with his co-accused were each found guilty of the offence of Robbery with Violence, convicted and sentenced to life imprisonment vide the learned trial court’s Judgment of April 30, 2020 and Sentence Ruling of May 6, 2020 respectively.

6. Aggrieved by that conviction and sentence the appellant herein filed this appeal on the following grounds;1. That the Learned trial Magistrate erred in law and fact in accepting the prosecution evidence of identification without considering the fact that no identification parade was carried out. PW1 was a single identifying witness and no caution was given before conviction. It was an error in law to rely on flimsy facts.2. That the Learned trial Magistrate erred in law and fact by holding that robbery with violence was proved but failed to note that the prosecution evidence was marred with presumptions, assumptions which were not supported by evidence, too many contradictions and inconsistencies arose in evidence of the prosecution witnesses.3. That the Learned trial Magistrate erred in law and fact by misconstruing the arrest of the appellant from Engarusha building and tried to connect him with robbery purported to have been committed to one Michael Ng’ang’a at Nakuru Rift Car Bazzar.4. That the Learned trial Magistrate erred in law and fact in shifting the burden of proof to the appellant when he failed to evaluate conclusively the appellant defence of alibi alongside the prosecution evidence, the defense was not given adequate consideration.5. That the Learned trial Magistrate erred in law and fact in imposing harsh and excessive sentence considering the appellant’s mitigation and circumstance that prevailed by the time offence was committed, this sentence is against the appellant’s constitutional rights given under Article 50(2) (p) and (q) of theConstitution of Kenya 2010 and as provided for under section 333(2) of theCriminal Procedure Code.

7. This being a first appeal the Appellant is entitled to a re-evaluation of all the evidence, a kind of re-trial, and for this court to draw its conclusions from the evidence on record, always keeping in mind that it never saw or heard the witnesses.

8. This guiding principle was spelt out in Okeno v R; Ngui vs Republic [1983] eKLR where the Court of Appeal while dealing with an appeal from the High Court had this to say:'We draw the attention of the learned judge to Okeno vs Republic [1972] EA 32, and to Pandya vs Republic [1957] EA 336 as was said in Okeno’s case, at page 36: -'The first appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions.''It is not enough for the first appellate court merely to scrutinize the evidence to see if there is some evidence to support the trial court’s findings and conclusions. It is accordingly incumbent on this court to make its own evaluation of the evidence, so as to satisfy itself that no failure of justice has been occasioned by the defects in the first t appellant court’s judgment.'

9. In Okeno vs Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated on the duty of the Court on a first appeal:'An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M Ruwala vR, [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post, [1958] EA 424'

10. It is with the foregoing in mind that I now consider the appeal. From the Amended Grounds of Appeal filed on April 5, 2022 the appellant attacks the Subordinate Court’s Judgment on the following grounds;i.That there was insufficient evidence of identification as no parade was carried out.ii.That the case for the prosecution was filled with unreliable evidence.iii.That the appellant’s defence was ignored.iv.That the sentence was harsh and excessive.

11. I have carefully considered the Submissions by the appellant and the respondent.

The Appellant’s Submissions 12. The appellant filed his written submissions on the 5th of April expounding on his Amended Grounds of Appeal.

13. On whether the appellant was positively identified by the prosecution witness PW1, the appellant submitted that PW1 was the sole identifying witness and his evidence on identification was unreliable as the circumstances were not favorable for positive identification. He submitted that PW1 testified that the Appellant allegedly threatened him to silence using a gun and he was scared for his life and as such it was difficult to identify the stranger given the little time he had and the circumstances.

14. The appellant submitted that PW1 did not record the descriptions or physical features of the assailant with the police and faulted the prosecution for not conducting an identification parade noting that prior to arrest the Appellant was a stranger to PW1. That his was a dock identification and hence unreliable. He cited Ajode vs Republic [2004]2 KLR 81, where the court held that before an identification parade is held a witness should record the description of the person sought to be identified in advance together with the parade forms availed to court so that it can compare the description given of the accused. He argued that in absence of an identification parade the sole evidence of could not support the conviction. He cited Roria vs R 1967 EA 583, Maitanyi vs R 1986 eKLR on the law on identification, and Abdulla bin Wendo & Another vs Regina (1935) EACA 166 on the necessity for a court to test the evidence of the single identification witness. He argued that PW1 testified that the PW3 never saw the appellant yet PW3 testified he saw the appellant from a distance. He cited Tekerali s/o Kirongozi & 4 others vs R 1952 19 EACA 259 and R vs Shabaan Bin Donaldi [1940] 7 EACA 70 for the proposition that without previous descriptions the evidence of PW1 was unreliable. He urged the court to consider as an afterthought the PW1’s and PW3’s testimony on identification and cited Anjononi vs Republic (1980) KLR 57 and Ndung’u vs Kimanyi vs Republic with regard to the credibility of the testimony of PW1.

15. The appellant further submitted that the evidence by PW3 that he was able to identify this appellant was not reliable.

16. The appellant also submitted that the prosecution had not proved the charge of robbery with violence against the him.

17. He cited the provisions of section 296(2) of the Penal Code and the Court of Appeal, case of Ganzi & 2 Others Vs Republic [2005]1 KLR & Johanna Ndungu vs Republic Cr App No 116 of 2005 (unreported) which set out the ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code: that the offender was armed with a dangerous or offensive weapon or instrument or, was in the company of one or more persons and that immediately before or after the time of robbery, he wounds, beats, strikes or uses any other violence to any person. Proof of any one of the ingredients would be enough to sustain a conviction as was held in the case of Oluoch vs Republic [1985] KLR 549. He contended that PW1 did not prove ownership of the motor vehicle in question belonged to him, and cited Stephen Juma vs Republic [2016] eKLR or that he spent 20 to 30 minutes with the assailants to enable him identify them Victor Mwendwa Muline vs Republic [2014] eKLR and nothing of the stolen items was recovered from the appellant. That the prosecution did not establish any ingredient of the offence or any connection of the appellant to the alleged offence.

18. The appellant argued his 3rd and 4th grounds together. With respect to his arrest he submitted that the same was instigated by the 2nd accused. That PW6 confirmed that he arrested the Appellant as he was in communication with the co accused and that he came out to pay for the taxi. He submitted that the law concerning evidence of co accused was discussed in the Anyangu vs R [1968] EA 239, Joseph Odhimabo vs Republic Cr Appeal No 4 of 1980andPeter Kinyua Ireri vs Republic [2016] eKLRwhere the courts were of the view that the evidence of co accused is of the weakest kind and incapable of supporting a conviction without corroboration. He urged the court to find that the statement made by the 2nd accused were exculpatory, extrajudicial, not a confession, and not supported by the evidence from Safaricom to confirm that he was talking to him on phone.

19. In Anyangu & Others vs Republic [1968] EA 239, where the Court of Appeal for East Africa held as follows at Page 240:'A statement which does not amount to a confession is only evidence against the maker. If it is a confession and implicates a co-accused, it may, in a joint trial be 'taken into consideration' against that co-accused. It is however, not only accomplice evidence but evidence of the ‘weakest kind’ (Anyona s/o Omolo and Another VR (1953) 20 EACA 318). A statement is not a confession unless it is sufficient by itself to justify the conviction of the person making it of the offence with which he is tried.'

20. The Appellant submitted that his alibi defence was not considered. He argued that the burden to discharge alibi defence lay with the prosecution and did not shift to the accused and referred the court to Karanja vs R [1983] KLR , Kiarie vs R [1984] KLR. And on the case of Kiarie vs Republic [1984] eKLR where the court of appeal held that;'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'

21. On sentencing, he urged the court to review the sentence as per Article 50(2) (p) & (q) of theConstitution of Kenya 2010 and Section 333(2) of the Criminal Procedure Code Sentencing Policy Guidelines. Noting that he had been behind bars for 8 years as at the time of the appeal and to award a determinate sentence to run from the date of arrest. He prayed that the appeal be allowed.

Respondent’s Submissions 22. Ms. Murunga made oral submissions on the July 1, 2022 opposing the appeal.

23. She relied on Oluoch vs Republic [1985] KLR 549 with respect to the ingredients of the offence.a.The offender is armed with any dangerous or offensive weapon or instrument; ORb.The offender is in the company of one or more person or persons; ORc.At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.

24. She submitted that the facts of this case show that the PW1 on the material date was accosted by four (4) people and that the Appellant was amongst them. That the Appellant entered the subject motor vehicle along the way when PW1 was test driving it with the Appellant’s co accused and sat beside him. The appellant was armed with a gun, hit the PW1 with it, gave him a liquid substance and forced him to take it. She submitted that the evidence on record show that the PW1 resultantly suffered injuries and was treated and discharged. That the ingredient of the appellant being in the company of another was proved.

25. On identification, counsel submitted that PW1 recalled what happened on that day. That the offence happened in broad day light and that PW1 saw the appellant who appeared from one side of the road, entered the car and sat next to him. That the appellant sat next to him was not concealed and he spent around 30 to 40 minutes with PW1 and as such the circumstances were favourable for positive identification.

26. The counsel further submitted that the appellant on the material date was in constant communication with his co accused who was to take the subject Motor vehicle to him. That when his co accused was arrested, he led the police to the Appellant and he was similarly arrested. She thus argued that the Appellant’s alibi defence lacked merit and urged this court to uphold the conviction against him.

27. The issues for determination then are whether the prosecution established the ingredients of the offence of robbery with violence, whether the appellant was properly identified as one of the robbers, whether his defence was considered, and whether the sentence was harsh and unjust.

Analysis 28. According to PW1 Michael he was at the material time working at Rift Motor Bazaar. On September 7, 2012, at around 4pm a customer by the name Mbaabu ( Peter Mbaabu Mutembei 2nd accused ) went there, and asked to view a Premio, he identified xxxx. The customer, Mutembei and himself got inside the motor vehicle and discussed about it. It was drizzling. Then they parted, with a promise to catch up on the deal the following day.

29. The next day he called Mutembei. He came, and they went to see the car. He asked for a test drive. PW1 was not opposed and since the car did not have fuel they passed by Kobil Petrol station and fueled it. Mutembei requested him to take the motor vehicle to his mechanic at show ground area. He agreed. Along the way Mutembei identified a person on the road side as the mechanic. They stopped. The mechanic said he could tell how the car was by the way it was running. He did not open the bonnet. Mutembei got into the driving seat and he PW1 moved to the passenger’s seat while the mechanic sat behind Mutembei. He was not told the mechanic’s name. They drove towards Golf club. He heard the mechanic tell the driver ‘mos mos’ which means slow down.

30. Shortly thereafter he saw two people; one was on the right side while the other one was on the left side. He identified this person as the appellant herein. It was about 9. 00 am. He said the appellant sat beside him on the left side. He asked what was happening and the appellant hit him with an object on his face. He bled. Then he insulted and ordered him to keep quiet. Mutembei alighted, went to where he sat and pushed him to middle of the back seat. Then the one who approached on the right side took the wheel. They proceeded towards Golf club and when they stopped the motor vehicle, the Appellant showed him a gun and threatened to shoot him if he did not cooperate. He was assaulted by the Appellant and the mechanic.

31. The Appellant forced him to drink a liquid from a bottle, in the process injuring his mouth. He felt dizzy. The car moved to a rough road. At some point they stopped, the mechanic pushed him to the ground and the appellant tied him with tape and they rolled him inside the maize plantation.

32. After they left he was able to untie himself and got to the roadside where he got help from a lady good Samaritan who dropped him at his place of work. It is while there that he lost consciousness and came to while in hospital. He later recorded a statement at the police station, was issued with a P3. He said that the motor vehicle belonged to one Isaac Towett and that he lost his mobile phone Nokia S5 ,white in colour and Kshs 15,000/=. It was his testimony that the Motor vehicle was found in possession of Mutembei and about 11,000 -12,000 was recovered. He said he clearly saw the Appellant, the mechanic and the driver and could identify them. He said he gave the description of the Appellant to the police officers but did not record the same in his statement. He identified the appellant on the dock.

33. PW2 Frankline Kipchumba Toroitich, was a coworker of PW1. He confirmed on September 7, 2012 a customer came to the bazaar and identified a car Premio model xxxx and proceeded for a road test with PW1. About an hour later he learnt PW1 had been taken to the hospital. He said the motor vehicle was recovered the following day. He did not know the Appellant.

34. PW3 Isaac Kipkemboi Towet the car dealer at Rift Motors Bazaar confirmed that PW1 was brought in by a Good Samaritan, after he had gone on a test drive with a client. He said he had lost consciousness and he directed he be taken to the Hospital. He could not remember who reported the incident but he confirmed the motor vehicle was recovered by the police officer.

35. PW4 No xxxx CPL John Wambua, working in the crime scene unit at Nakuru. He was the one who took the photographs of the subject car and recovered items namely; licence of Peter Mbaabu Mutembei hammer, 2 spanners, 2 mobile phones, adhesive tape and chisel. He processed the photographs and prepared a certificate and signed it on May 26, 2013. He produced the said photographs and the certificate as exhibits.

36. PW5 No xxxx No CI David Otieno Nandi was the investigating Officer. He reiterated the testimonies of the other witnesses as per the recorded statements. He testified how the police acting on a tip off about a motor vehicle parked in a church compound laid ambush, arrested the appellant’s co accused Mutembei who cooperated with police and led to the arrest of Appellant.

37. PW6 NO xxxx PD Mathews Nondi was the arresting officer. He testified that he received directions from the OCS to attend to operations. He was told there was motor vehicle Registration Number xxxx parked at Mongeno area at Reverend Monthias Compound. They went there and found a motor vehicle registration number xxxx. Upon interrogating the owner of the compound, he was informed that the motor vehicle had been left there by four gentlemen on allegation that it had mechanical breakdown and they had gone to look for a mechanic. While there a person emerged and told them that he had been sent by one Njoroge to collect the car and take it to Vineyard. They arrested him and instructed him to cooperate and take them to the said Njoroge. They drove to Vineyard then as per ‘Njoroge’s’ instructions, instructed Mutembei to tell Njoroge that he had no fare to go to Engashura. They instructed Mutembei to tell Njoroge that he had taken a taxi and would need Njoroge to come and pay the taxi. On arrival at Engashura they lay ambush and told Mutembei to tell Njoroge that he was outside the building. There, the said ‘Njoroge’ came. But upon interrogation his name was Morris Mbugua Mutugi the Appellant herein. They arrested him.

38. Inside the motor vehicle they found the number plates for motor vehicle registration xxxx which had been stolen from Rift Motors Bazaar. It was later established that the Number Plates xxxx were fake.

39. From the foregoing evidence, it is clear that the ingredients of the offence of Robbery with Violence were established. There was theft of the motor vehicle registration number xxxx from PW1 who had taken the motor vehicle for a test drive with Mutembei who had masqueraded as a customer. He was also robbed of other items that were recovered in the motor vehicle.

40. During the theft of the motor vehicle, the PW1 was threatened with a gun, he was assaulted by the Appellant and the Mechanic who sat with him in the back seat of the car. The Appellant also forced him to ingest a drink that was laced with a poisonous substance that caused unconsciousness and admission to hospital. The treatment documents and the P3 attested to his having been wounded.

41. The robbers were more than one person. The mechanic, Mutembei and the Appellant, another who joined them and the appellant’s co accused. According to the PW1 the Appellant was armed with a pistol, a dangerous weapon.

42. The prosecution did not have to prove all the ingredients of robbery with violence because any of them or a combination is sufficient. In this case the theft and the wounding are sufficient.

43. Clearly therefore the ingredients of robbery with violence were established.

44. The key question here is whether the appellant the prosecution established any connection between the appellant and the offence as established. The Appellant in his sworn statement of defence told the trial court that on the material date he agreed with his friend on Mr Karuri to meet at Bahati over a business arrangement. He left his home at Langalanga about 11:00am and went to Bahati. Reaching there around noon. The person he wanted to see had left. He left to take a matatu on the highway about 2 pm. While there a speeding vehicle which immediately stopped and out came a man holding a shot gun in his hands. He feared he was about to be kidnapped. The man ordered him to board the motor vehicle. He obeyed and four occupants inside. He was taken to Bahati police station to the office of a Mr Ogola and later to the cells. Later he was taken to Nakuru Police Station where he was chained with the 2nd accused whom he did not know. He was later charged jointly with him.

45. On cross examination he said that the motor vehicle that arrested him was yellow in colour. That he had never seen the accused before. He denied committing the offence.

46. The evidence of PW1 is that he left the car Bazaar with Mutembei. A short distance they were joined by the mechanic who now sat at the passenger seat while Mutembei took the driver’s seat. PW1 sat behind Mutembei. As they moved on Mutembei expressed concern over a noise in the car engine. PW1 told him to stop ahead so that the mechanic could check it out. He heard the mechanic tell him to drive slowly and as he did so PW1 saw two people clearly just ahead. One was on the right, the other on the left of the motor vehicle. The one on the left hit him with something on the head drawing blood and forced him to move so that he could sit on that side. He identified the appellant as one of the robbers.

47. The evidence of the arresting officer is clearly that they arrested Mutembei with the motor vehicle. Upon his arrest he told them the motor vehicle belonged to one Njoroge to who he was simply to deliver it. When they got to where the motor vehicle was to be delivered the person who showed up as Njoroge turned out to be the appellant herein.

48. The appellant was identified by the PW1 and the arresting officer. The incident happened in the day time. The appellant spent time with the PW1 hitting him, forcing him to drink stuff. The learned trial magistrate heard and saw PW1 testify, She was satisfied as to the truthfulness of his testimony, something that this court has no advantage of.

49. That besides Mutembei did not just tell on the appellant, he led the police to the arrest of the appellant whom the complainant was able to identify as one of the robbers. Considering the time spent with the complainant, the time of day, I find no reason to set aside the trial court’s finding on identification.

50. The accused’s statement of defence does not in any way set of any doubt in the case for the prosecution. It is sounds incredible that the police would for no reason kidnap a person and charge him with a criminal offence.

51. Having found that the offence of robbery with violence was committed and that there is evidence placing the appellant at the scene of the offence I am of the view that the prosecution did establish the charge against the appellant of Robbery with Violence contrary to Section 296(2) of the Penal Code. There is no reason to disturb the conviction.

52. With respect the sentence I am alive to the Court of Appeal’s view in Bernard Kimani Gacheru vs Republic [2002] eKLR that:'It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.'

53. The sentence for Robbery with Violence contrary to Section 296(2) is death.

54. The learned trial magistrate sentenced the appellant to life imprisonment. That sentence is legal.

55. Taking into consideration what I said in HCRA 12 of 2020 with respect to the 2nd appellant’s appeal on sentence, I think it is only fair that the court proceeds as per Section 354 of the Criminal Procedure Code;'354. Powers of High Court(1)At the hearing of the appeal the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and the respondent or his advocate may then address the court.(2)The court may invite the appellant or his advocate to reply upon any matters of law or fact raised by the respondent or his advocate in his address.(3)The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may

(a)(b)In an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;

Final orders 56. The appeal against the conviction is dismissed and the conviction is maintained.

57. The appeal against the sentence is allowed.

58. I direct that Probation and After Care Services avails a pre-sentence report within fourteen (14) days hereof.

59. Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 19TH DAY OF OCTOBER, 2022. MUMBUA T. MATHEKAJUDGEIn the presence of:Court Assistant: JeniferFor Appellant: AppellantFor Respondent: Ms. Murunga