[2022] KEHC 11623 (KLR)

Mutembei v Republic (Criminal Appeal 12 of 2020) [2022] KEHC 11623 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11623 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal 12 of 2020

TM Matheka, J

May 19, 2022

Between

Peter Mbaabu Mutembei

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 Maurice Mbugua Mutugi 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 8th day of September 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 KBS 024S 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. On the alternative charge; that on 8th September 2012 at Kiti village in Nakuru within Rift Valley Province, otherwise than in the course of stealing, the accused dishonestly assisted in the retention of Motor vehicle Registration Number KBS 024 S for the benefit of Njoroge knowing or having reasons to believe it to be stolen motor vehicle.

5. After a full trial 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 30th April, 2020 and Sentence Ruling of 6th May 2020 respectively.

6. From the record it emerged that in the process of hearing the matter the appellant herein who was on bond absconded. As a result, the learned trial magistrate had to proceed with the other accused person’s case separately as he was in custody. By the time the appellant was arrested his co-accused case was at defence case. The learned trial magistrate expedited the trial and proceeded with the appellant’s case separately. In the circumstances she was compelled to write two separate judgments. On the 30th of April 2020, the learned magistrate found the appellant guilty of the main offence of Robbery with Violence and sentenced him to life imprisonment on 6th May 2020.

7. Aggrieved by that conviction and sentence the appellant herein filed this appeal on the following grounds; he filed two (2) sets, Amended and Supplementary grounds which I reproduce hereunder;1. That the Learned Magistrate erred in law and fact by failing to appreciate the defence’s testimony, submissions and mitigation.2. That the Learned Magistrate erred in law and fact in sentencing the Appellant for the offence charged when there was no adequate evidence to prove the charge by attaching undeserved weight to the evidence by the prosecution and disregarding the Appellant’s defence.3. That the Learned Magistrate erred in law and fact in failing to address her mind to the fact that the ingredients of the offence of robbery with violence were not proved against the appellant beyond reasonable doubt.4. That the Learned Magistrate erred in law and fact by failing to subject the evidence before her to a comprehensive analysis and evaluation and thereafter drawing her own conclusions on the same.5. That the Learned Magistrate erred in law and fact in finding the Appellant committed the offence of Robbery With Violence contrary to Section 295 as read with Section 296(2) of the Penal Code when there was no adequate evidence to support that finding.6. That the Learned Magistrate erred in law and fact by relying on the evidence of the Prosecution especially one PW7 C.I David Otieno Nandi which was not enough to establish a case against the Appellant beyond reasonable doubt.7. That the Learned Magistrate erred in law and fact by admitting that the evidence of recognition and or identification in relying and or admitting the evidence of PW1 and PW2 whereas their evidence proved to be unreliable.8. That the Learned Magistrate erred in law and fact in accepting and relying on evidence from the Prosecution which ought not to have been received and/or admitted on record.9. That the Learned Magistrate erred in law and fact by totally disregarding the Appellant’s evidence and further placing credence on extraneous matters not material to the case and thereby finding that the prosecution had established its case beyond reasonable doubt.10. That the Learned Magistrate erred in law and fact by failing to appreciate that the testimony of the Appellant was cogent, truthful and justified.11. That the Learned Magistrate erred in law and fact in sentencing the Appellant to serve life imprisonment which sentence was excessive in the circumstances.12. That the Learned Magistrate erred in law and fact by failing to appreciate the mitigation given by the Appellant.

8. This being a first appeal the accused person 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 I never saw or heard the witnesses.

9. This was spelt out in 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 appellant 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.”

10. 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:a.“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] E. A. 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 v. R., [1957] E.A. 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 v. Sunday Post, [1958] E. A. 424. ”

11. It is with the foregoing in mind that I now consider the appeal. From the Grounds of Appeal the appellant attacks the Subordinate Court’s Judgment on the following grounds;i.That prosecution did not prove its case against him beyond a reasonable doubt, hence the issue whether on the evidence on record the prosecution did prove the ingredients of the offence of Robbery with Violence.ii.That the evidence of PW1, PW2 and PW7 was unreliable these will be examined with (i) hereinabove.iii.That there was no positive identification of the appellant by the witnesses.iv.That the learned trial magistrate did not consider his defence.v.That the learned trial magistrate did not consider his mitigation.vi.That the sentence was harsh and oppressive.

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

THE APPELLANT’S SUBMISSIONS 13. The appellant filed his written submissions on the 23rd of October 2020 expounding on his Amended Grounds of Appeal.

14. On whether the prosecution had availed sufficient evidence to support the charge the appellant argued that the failure to call one Karuri and the OCS Bahati police station who had sent the PW6 on the operation that led to the recovery of the motor vehicle and alleged arrest of the appellant could only be held against the prosecution as being adverse to their case per the cases of Bukenya & Another vs Uganda [1972]E.A 549 & Juma Ngondia vs R [1982-88]KAR 454.

15. He submitted that that the prosecution’s evidence was contradictory and uncorroborated. That for instance PW1 & PW2 stated that one person came looking for a car whereas PW3 who was a car dealer in the same company stated that they were two people, that charge sheet indicated that Kshs. 15,000/= cash was stolen from the complainant yet from the complainant in his statement never stated the same, that the total amount stolen as per the charge sheet is Kshs.1, 281,000/= yet the evidence on record put the total amount at Kshs.1, 279,000 /=and that PW1 statement was undated.

16. He urged the court not to give a blind eye to contradictions and he cited the case of Augustine Njoroge vs Republic Criminal Appeal Number 185 of 1982 where the court while addressing the issue of contradictory evidence stated that contradictory evidence is unreliable

17. The appellant also submitted that the court relied on the evidence of a single witness PW2 to convict him yet his evidence on what transpired during the robbery was not corroborated. That trial court basing its conviction on the evidence of this single witness was extremely precarious. He cited the case of Roria vs Republic 1967 EA 583 where the appellate court held that 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.

18. He submitted that there was poor investigation that did not support the case for the prosecution. That investigation must be carried out with great details and care so as to ensure every aspects of the case are addressed as provided for under Section 24 (e ) and 51 of the National Police Act Cap 84. He contended that in this case the police failed in both procedures and law in conducting their investigations in that they did not secure the car for dusting to be done and ensure there was any nexus between the appellant and the alleged car. He argued that allowing the appellant to enter into the car and drive the same without taking caution was tantamount to interfering with the scene and that failure to take photographs and inventory of the scene of recovery was contrary to the law.

19. He submitted that the prosecution failed to prove the ownership of the alleged motor vehicle and that physical details that created a nexus between the motor vehicle and the alleged number plates created unbridgeable gap on the prosecution case and in this case the doctrine of recent possession arrived at was not proved beyond reasonable doubt.

20. That he was arrested based on suspicion which is untenable in law as it cannot provide a basis of inferring guilt which must be proved by evidence. To support this position the appellant cited the cases of Sawe vs R [2003]KLR 364, Mary Wanjiku Gichira vs R Criminal Appeal No.17 of 1998 & R Vs Ally Criminal Appeal No.73 of 2002 [2006]TZCA 71.

21. He asserted that the prosecution witnesses had no reason to believe that the complainant was dumped and abandoned by the robbers as they did not visit the alleged crime scene.

22. With respect to his defence he submitted that his defence that he was present at the scene as a victim and not as a robber was not rebutted by the prosecution as provided for under Section 309 of the Criminal Procedure Code. He relied on the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR for this proposition.

23. He also submitted that a person is always presumed innocent until proven guilty and that proof in criminal matters is beyond reasonable doubt and discharge of such proof always rests with the prosecution. For this proposition the appellant placed reliance on the cases of R vs Silas Magongo Onzere Alias Fredrick Namema [2017]eKLR, Re Winship 397 US 358 [1970] at pages 361-64. R vs Lifchus [1997]3 SCR 320, R vs Kipkering Arap Koske & Another [1949]16EACA 135, Republic vs Stephen Kiprotich Leting & 3 Others Criminal Case No.34 of 2008[2009]eKLR.

24. The appellant submitted that the trial court associated itself with the doctrine of recent possession in convicting him. He argued that the doctrine of recent possession was discussed in the case of Isaac Ng’ang’a Kahiga & another vs Republic [2006] eKLR as follows:-“.. It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. .”

25. The appellant submitted that this doctrine should be disregarded as there was no proof that he was found in possession of the alleged motor vehicle and that the ownership of the same was not proved.

26. On the sentence the appellant associated himself with the decision in Alister Anthony Pereira vs State of Mahareshta at Para 70-71 where the court stated the following with regards to sentencing:-“Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. There is no straightjacket formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the of the offence and all other attendant circumstances”

27. The appellant also cited the objectivity of sentencing according to the Sentencing Guidelines 2016 and the case of Francis Karioko Muruatetu & Another vs Republic & 5 Others [2016] eKLR which listed the following as mitigating factors applicable in resentence hearings .:-a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family; Remorsefulness of the offender;h.The possibility of reform and social re-adaptation of the offender;i.Any other factor that the Court considers relevant.

28. He submitted that he had undergone a lot of transformation and now totally reformed person and that he is utterly remorseful of the offence committed and deeply regrets the circumstances that led to the same. He stated that his family and the community are willing to accept him in the society and that he has been diagnosed with multiple medical and surgical conditions which require close follow up. He urged this court to be compassionate enough and allow his appeal on sentence on health grounds and reduced it to a period already served.

29. The appellant also filed Submissions on 19th April, 2021 where he reiterated that the prosecution evidence was contradictory & speculative, investigations were shoddy, and that the ingredients to prove the charge of robbery with violence were not met.

RESPONDENT’S SUBMISSIONS 30. The respondent submitted orally though Ms Murunga on the 23rd February 2022 and opposed the appeal.

31. It was submitted that identification of accused person is fundamental in robbery with violence charge. That PW1 stated that the appellant went to his place of work around 4. 00 pm, he introduced himself and stayed there until 5. 00 pm posing as a person who had come to buy a motor vehicle from the bazaar. Since it was late the complainant advised him to come the following day. The following day he went back, identified the motor vehicle he wanted and requested to test drive. That the appellant was talking in close contact with the appellant; that they boarded the same motor vehicle which the appellant drove. Along the way the appellant picked two people whom he introduced as a mechanic and while on the move they managed to drug the complainant and dumped him in a thicket.

32. That the respondent further contended could not claim to be a victim as he had perpetrated the crime and he was the one who had picked the person on the road along the way while they were test driving the subject motor vehicle.

33. That PW2 was hit and injured while the appellant was not injured is an indication that the Appellant was one with the robbers. The element of the offence of Robbery with Violence were set in Oluoch vs Republic [1985] KLR 549 asa.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.

34. In addition, the offender steals from the victim.

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

ANALYSIS 36. According to PW1 Frankline Kipchumba Toroitich and PW2 Ng’ang’a Josphat, they were at the material time working at Rift Motor Bazaar. On 7th September 2012, a customer by the name Kamau went there, and asked to view a Premio, he identified KBS 024S. The customer and PW2 sat inside the motor vehicle and talked about it. It was drizzling. Then they parted, with a promise to catch up on the deal the following day.

37. The next day PW2 called the customer. He came, and they went to see the car. PW2 asked for the car keys so that the customer could view the motor vehcle. PW1 brought the keys. The customer asked for a test drive. PW2 got into the car, and they left. He fueled it for Kshs. 200/=. As they were about to leave the customer received a phone call. He told PW2 that it was his mechanic who wanted to check out the car. They left. Along the way the customer 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. As they boarded the car the customer requested to drive the car. PW2 agreed. He sat in the passenger seat while the ‘Mechanic’ sat behind the driver. He asked the customer to drive towards Kiamunyi. The customer said they could drive around showground area as they were not going far. They left, and as they did he heard the mechanic tell the driver ‘mos mos’ which means slow down.

38. The customer slowed down, that is when two (2) men came to the car the front doors, one on his side and the other on the driver’s side. The one on his side hit him with a fist, and ordered him to move and before he knew it, he was pushed to middle of the back seat. The customer now occupied the passenger seat, while the person who had approached on the driver’s side took the wheel.

39. He was assaulted by those he sat with in the back seat. He could hear the customer telling them not to beat him because he had no issue with him. One of those seated with him had a gun and threatened to shoot him if he did not cooperate. They 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, removed him from the back of the car, took him to a maize plantation tied him with tape and left him in a ditch.

40. After they let 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 he knew his client/customer well having spent time with him on the 1st day, at the car bazaar, on the 2nd day at the same place and while they travelled in the car. He was able to identify the client as the appellant.

41. PW3 Isaac Kipkemboi Towet the car dealer at Rift Motors Bazaar confirmed that PW2 was brought in by a good Samaritan, after he had gone on a test drive with a client, he lost consciousness after telling them the car had been stolen. They took him to hospital.

42. PW3 reported the matter at Central Police Station and a search for the car led to its recovery at a place called Bahati. Two (2) people were arrested.

43. PW4 Dr. Stephen Onyango produced the P3 form for the PW2. PW2 had CNS depression secondary to poisoning. PW5 Moses Ogoye Okech from Valley Hospital produced the treatment notes from PW2, and that diagnosis was poisoning. He also noted the other bodily injuries that were relatively fresh when PW2 was admitted.

44. PW6 No. 85961 PC Mathews Nondi was the arresting officer. He testified how, while on Crime Standby at Bahati Police Station he received directions from the OCS to attend to operations. He was told there was motor vehicle in a church compound. They went there and found a motor vehicle registration number KBK 488K. While there a person emerged and told them that he had been sent to collect the car for one Njoroge and park the car at Vineyard Hotel and leave it there. They arrested him and instructed him to cooperate and take them to the said Njoroge. PW6 took over the motor vehicle and they drove to Vineyard then as per ‘Njoroge’s’ instructions, took a taxi to Engashura. There, the said ‘Njoroge’ came. The person they arrested at the church compound was the appellant herein. Inside the motor vehicle they found the number plates for motor vehicle registration KBS 024S which had been stolen from Rift Motors Bazaar. There was inside the car the Driving Licence for the appellant herein, cello tape, spanner, two (2) mobile phones among other items. There were photos taken by scenes of crime personnel. It was later established that the Number Plates KBK 488K were fake.

45. PW7 No. 218938 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 herein who cooperated with police and led to the arrest of his co-accused.

46. 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 KBS 024S from PW2 who had taken the motor vehicle for a test drive with a customer who he identified as the appellant herein. He was also robbed of other items that were recovered in the motor vehicle.

47. During the theft of the motor vehicle, the PW2 was threatened with a gun, he was assaulted by the persons who sat with him in the back seat of the car. They 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.

48. The robbers were more than one person. The mechanic, the two who joined them and the appellant. According to the PW2 one was armed with a pistol, a dangerous weapon.

49. 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

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

51. The key questions here is whether the appellant was identified?

52. The first thing is that the appellant does not deny being at the scene of the robbery. His testimony in his defence is no different from that of the PW2 except that he claims that like PW2 he too was a victim.

53. That besides PW2 spent time with the appellant on the first day 7th September 2012 when the appellant went to see the motor vehicle. The appellant went there the following day and 8th September 2012. They spent time together at the car bazaar before they left with the appellant for the test drive.

54. The trial magistrate clearly considered the appellant’s defence and gave it a comprehensive analysis. I agree with the analysis that the appellant’s victim theory was not tenable. Unlike PW2, who was forced to the back seat and forced to sit on the floor between the other two robbers, the appellant occupied the co driver’s seat. No one beat him up, and his testimony does not demonstrate how the two thugs at the back of the motor vehicle could have forced him to take the drink as the car was moving yet they were busy with the PW2. Neither is it clear how why if both were victims one was dropped in one maize plantation and he at another. He said he was taken to hospital having ingested the poison but did not produce the documents or say where it is he had been treated. The coincident that he would have emerged from the maize plantation straight into the hands of the police who were not even looking for him appears unbelievable. The fact of the ambush and the arrest of his co accused, and the recovery of the motor vehicle present a credible set of facts and I have no reason to discredit the trial magistrate’s finding of this fact as she heard and saw the witnesses and the appellant as a witness in his own case. She believed the PW2 and PW6. PW2’s testimony of the fact of being drugged and dropped off by a good Samaritan was corroborated by PW3 and the treatment documents from valley hospital. His co-workers saw him leave with the appellant/ a client and he came back drugged and without the motor vehicle. That makes his testimony believable when weighed against the testimony of the appellant.

55. It is not in doubt that the appellant was found with the stolen motor vehicle by the police with and the trial magistrate was in order to apply the doctrine of recent possession.

56. Hence the prosecution did establish the charge against the appellant of Robbery with Violence contrary to Section 296(2) of the Penal Code. I find no reason to disturb the conviction.

57. On sentence, The Court of Appeal, in Bernard Kimani Gacheru vs Republic [2002] eKLR restated 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.”

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

59. The learned trial magistrate took into consideration the decision in the Muruatetu case that declared the mandatory nature of the death sentence unconstitutional and exercised her discretion and sentenced the appellant to life imprisonment. That sentence is legal. It was not harsh considering the circumstances of the offence.

60. The appellate court has the power to interfere with the sentence but only if there is good reason. Is there any reason to do so? According to the appellant his life in prison has taken a turn to poor health he has been diagnosed with multiple medical and surgical conditions leading to myriad health complications. He urged this court to relook at his sentence in light of these new developments.

61. In the upshot the conviction is sustained.

62. A pre-sentence report be made available by Probation and After Care services Nakuru to assist the court on the issue of sentence.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY 2022. Mumbua T. Matheka,Judge.In the presence of;CA EdnaMr. Mong’eri for appellantMs. Murunga for DPP for respondentAppellant present