[2022] KEHC 11701 (KLR)

Mwangi v Republic (Criminal Appeal 125 of 2019) [2022] KEHC 11701 (KLR) (Crim) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11701 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 125 of 2019

DO Ogembo, J

May 17, 2022

Between

Dennis John Mwangi

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of the Hon. S. Jalang’o SRM, in Makadara Chief Magistrate’s court in Criminal Case No. 2239/2017 dated 15. 2.2019)

Judgment

1. The appellant herein Dennis John Mwangi, was charged with 1 count of Robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code, before the lower court. The particulars were that on 18. 10. 2017, along 12th street, Eastleigh, Kamukunji sub-county within Nairobi county, jointly with others not before court, and while armed with offensive weapons, namely, Somali sword, he robbed Fatuma Shurie Abdi of her hand bag containing Ksh.2,500/= and immediately before the time of such robbery, threatened to use actual violence to the said Fatuma Shurie Abdi.

2. The appellant faced an alternative charge of handling stolen property contrary to section 322 of the Penal Code. That on October 18, 2017 along 12th Street, Eastleigh, in Kamukunji sub-county within Nairobi County, otherwise than in the course of stealing, he knowing or having reasons to believe the goods to have been stolen dishonestly retained 1 handbag the property of Fatuma Shurie Abdi.

3. The case of the appellant went through the motions of full trial. He was subsequently convicted and sentenced to serve 15 years imprisonment on the main count. This was on February 15, 2019. The appellant has filed an appeal against the said conviction and sentence. He has listed the following grounds of appeal.1. Thatthe learned trial magistrate erred in law and fact by convicting the appellant on evidence which was below the required standard of proof.2. Thatthe elements and ingredients of the offence of robbery with violence was lacking in the case as presented before court and the prosecution failed to produce even a single evidence in support of the charge.3. Thatthe learned trial magistrate failed to observe the gravity of the sentence and went ahead to convict the appellant based on the offence of robbery with violence whereas the prosecution’s case was a mistrial from the onset.4. That the learned trial magistrate erred in both law and fact by failing to observe the general values and principles in a criminal trial by shifting the burden of proof to the appellant.5. Thatthe learned trial magistrate failed to adequately consider the appellant’s defence.

4. The appellant has prayed that this appeal be allowed, the conviction be quashed, his sentence be set aside and that he set to liberty.

5. This appeal was canvassed by way of written submissions. Both the appellant and the Respondent duly filed their submissions in court.

6. The submissions of the appellant, contains amended grounds of appeal. No leave to amend the grounds of appeal was sought for and obtained before the filing of the amended grounds. I shall nonetheless consider the same as they form the issues for determination as formulated by the appellant. In the filed submissions, the appellant has listed the following issues: -i)Whether or not the prosecution’s case was proved beyond reasonable doubt as required by the law.ii)Whether or not appellant was positively identified.iii)Whether or not the appellant was found in possession of the said exhibit.iv)Whether or not the charge was defective.

7. It was submitted that the standard of proof in criminal cases in proof beyond any reasonable doubt. That key ingredients of the offence were not proved in this case. That from the evidence of PW1, it was unclear if the attackers were 2 or 3. And that if appellant had been the one with the knife, he could been arrested with the same since he was caught shortly after the incident. And that the knife being along one, could have been visible even to the Maasai guard at the bar. He also wondered how there were no other witnesses to this incident despite the fact that it was at a busy place.

8. The appellant also submitted that the complainant never positively identify the assailants in view of the circumstances. That it was at night and the incident must have happened very fast. The complaint must also have been scared. He relied on Republic Versus Turnbull & others (1976)3AHER, 549, on the factors that the court ought consider on visual identification including: How long did the witness have the accused in his observation.

At what distance

In what light

Was the observation impeded in any ways?

Had the witness ever seen the accused before?

If only occasionally, then did he have any special reason for remembering him?

How long and how much time had lapsed between the original observation and the subsequent identification to the police?

Was there material discrepancy between the description given to the police by the witness when first seen by him and the accused actual appearance?

9. He also relied on Kiarie Versus Republic (1984)KLR, that evidence of visual identification must be water tight as to sustain a conviction. Also on the case of Abdalla Bin Wenda Versus Republic 20 EACA, that;Subject to certain 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 respecting identification especially when it is known that the conditions favouring a correct identification were difficult.”

10. The appellant went further to submit on the contradictory evidence regarding the exhibits. He raised the issue of how the complainant managed to pick him out and whether there had been any struggle. He cited Mwangi Versus Republic(1974) 105 (Citation incomplete), that when an exhibit is not found in possession of the accused, then he is not liable for it.

11. Lastly, the appellant submitted that a charge that reads, section 295 as read with section 296(2) of the Penal Code is duplex, rendering the same null and void ab initio.

12. The respondent on the other hand, made very short submissions. First that the prosecution proved the ingredients of the offence as required under section 296(2) of the Penal Code. secondly, that the appellant was positively identified by both PW1 and PW4 since the appellant was even arrested immediately and within the vicinity of the crime scene.

13. Counsel also submitted on the doctrine of recent possession citing section 119 of the Evidence Act.The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the fact of the particular case.”

14. That the burden shifts to appellant to explain his possession of the item complained of. That the item he had had been stolen, stolen a short period prior to the possession, and there are no co-existing circumstances which point to any other person as having been in possession of the same item. He relied on Nyandika Orwerwe Versus Republic (2014)eKLR, and Gideon Meitekin Koyeit Versus Republic (2013)eKLR, on what to consider in application of the doctrine of recent possession, that is’a.That the property was found with the suspect.b.That the property was positively identified by the complainant.c.That the property was recently stolen from the complainant.

15. That given the short lapse between the time of the robbery and the recovery of the bag, the appellant was a perpetrator as he also failed to give any explanation of how he came to have the victim’s bag. The respondent maintained that the prosecution pursued the case against the appellant beyond any reasonable doubt. Also that the sentence was legal. The court was urged to dismiss this appeal.

16. This appeal is before this court as a first appellate court. As a first appellate court, the role of this court is long settled in the celebrated case of Okeno Versus Republic (1972)EA, 32, that;The appellate court of the 1st instance must itself weigh conflicting evidence and draw its own conclusion. It is not the function of the 1st appellate court merely to scrutinize the evidence and drawn its own conclusion. It is not the function of the 1st 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 ….. in doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and being the witnesses.”

17. It is therefore imperative that this court carefully considers the evidence on record so as to reach its own conclusions.

18. From the proceedings the case of the prosecution commenced with the evidence of PW1 Fatuma Shurie Abdi, that on 17. 10. 2017 at about 11:00pm, she was heading home when 2 men stopped him. That a knife was pointed at her and the men demanded her bag. That the assailants were actually 3 and they warned her not to scream. The knife was long. That her bag had Ksh.2,500/=. That the man who took her bag ran into a bar. That the maasai guard arrested the man and bag was recovered from the arrested man (MFI – 1). The Kshs.2,500/= had however been removed. The other 2 assailants escaped.

19. In her testimony, it is the appellant who had had the knife and who was arrested with the bag. And that she was able to identify the appellant as there was light at the scene which is next to the bar.

20. PW2 PC Benard Katuta gave evidence that on 18. 10. 2017 he had been in the company of his colleagues PC Mwita, PC Abdullahi and PC Ochorokondi in Eastleigh when they saw a crowd gathered near. That on reaching they got the complainant who was screaming and crying that she had been robbed of her handbag and that one of the robbers had entered a nearby bar. That on entering the bar, complainant pointed out the man. They then arrested the appellant as appellant was struggling with a night guard. They arrested him with the bag. (MFI – 1).

21. And PC Emorut Ochorokodi, PW3 also recalled that on 18. 10. 2017, at around midnight, he had been with his colleagues when they found a lady crying that someone had stolen her handbag and that the lady told them the man had entered a bar. That the lady pointed out the man to them. The man was in the process of struggling with the guard. They arrested the man (appellant) with the bag (Exh. 1). This witness confirmed that the scene had security lights.

22. The other prosecution witness PW4 was Julius Olais Molae, a security guard, whose evidence was that on 17. 10. 2017 at about 11-12:00 midnight, he was at his place of work when the appellant came running and entered Migingo Bar, his work station. That appellant hid inside a toilet. That after the complaint came complaining that the appellant had stolen her bag, he went and found the appellant inside the toilet. The police then came and arrested the complainant. The last witness Corporal Obadiah Kobia, took the witness statements and also kept the exhibits.

23. When the appellant was put in his own defence, he gave a sworn defence in which he stated that he had been watching football when 3 police officers came and arrested him. That he was told he had been arrested for being drunk and later forced to sign a document. He denied committing the offence.

24. This basically, was the evidence of the 2 sides. In my view, the following are the issues that are up for determination in this appeal:i.Whether the offence of robbery with violence was proved.ii.Whether the appellant was identified as one of the assailants.iii.The defence of the appellant.iv.Whether the case was proved beyond any reasonable doubt as required by the law.v.Sentence.

25. On the 1st issue, it is worth considering the provision of section 296(2) of the Penal Code. same provides:-If the offender is armed with any dangerous or offensive weapon or instruments or is in company with 1 or more other person or persons, or it at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

26. The above provision declares the ingredients of the offence of robbery with violence. In the case of Oluoch Versus Republic(1985)KLR, cited by the trial magistrate in the Judgment, it was held;-Robbery with violence is committed in any of the following circumstances;a.The offender is armed with a dangerous and offensive weapon or instruments orb.Offender is in company with 1 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.”

27. Proof of any 1 or more of the above ingredients would therefore be sufficient proof of the offence of robbery with violence.

28. In this insist case, it was the firm evidence of PW1 that she had been attacked by 3 men. At least 1 of the attackers had a knife. She was ordered to give out her bag and never to scream or call out for help. Her bag was then forcefully taken away from her. Even though the bag was later recovered, she lost Kshs.2,500/= which had been inside the said bag. It is therefore clear that the above ingredients of the offence of robbery with violence were proved by the prosecution. I so find.

29. This leads us to the next issue of whether the appellant was identified as one of the perpetrators of this offence. On this, the evidence of PW1 is material. Her testimony was that she was robbed at a scene next to a bar. The scene was well lit by security lights. That she saw the 3 attackers well and specifically, the appellant as the one carrying a knife and as the one who took her bag forcefully from her. That she saw the appellant then run into the nearby bar with her bag.

30. It is worth noting that as she screamed for help, the complainant kept telling how the assailant who took her bad had run into the nearby bar. She gave the same statement to the police officers who appeared at the scene, PW2 and PW3. And the evidence of the complainant got corroboration from that of the watchman, Julius Olais Molae (PW4) whose evidence was that he saw the appellant dash into the bar and hide in the toilet. He also participated in getting the appellant from the toilet and handing him over to the police who had rushed to the scene.

31. There is further evidence connecting the appellant to this robbery in the form of the handbag of the complainant recovered from him. The tests of the doctrine of recent possession have been well captured in the submissions of the respondent while relying on the cases of Samson Nyandika Orwerwe Versus Republic (2014)eKLR, and Gideon Meitekin Koyiet Versus Republic (2013)eKLR, as:1. That the property was found with the suspect.2. That the property was positively identified by the complainant.3. That the property was recently stolen from the complainant.

32. The prosecution gave the evidence of at least 4 witnesses (PW1, 2, 3 and 4) which clearly proved that the appellant was arrested with the handbag of PW1 in circumstances that prove that he was one of the robbers who attacked and robbed that complainant. The identification of the applicant was without a doubt positive and accurate and the tests in Republic Versus Turnbull and others (1976)AHER, 549 were satisfied.

33. The appellant gave the defence that he was arrested while watching football in a bar and that he was arrested for being drunk. With respect, I do not believe this defence. I see no reason why the police would go to a bar and pick out only the appellant out of the other revelers and arrest him for being drunk. The appellant also had no defence to the evidence of the prosecutions witnesses on how he and the 2 others attacked and robbed the complainant, or the manner of his arrest and robbery of the complainant’s bag from him. The defence of the appellant lacks any merit.

34. The sum total is that this court is convinced that the prosecution discharged its burden and proved count 1 of the charges against the appellant beyond any reasonable doubt as required by the law. I so find:

35. On the issue of the charge sheet appellant has maintained that the scene as drafted was null and void. I have carefully perused the charge sheet herein. It reads “Contrary to section 295 as read with section 296(2) of the Penal Code. I can only note that whereas section 295 of the Penal Coderefers to the offence of robbery, section 296(2) of the penal code is on robbery with violence. I otherwise do not see or find any confusion that the mention of the 2 sections in the charge sheet would create in the mind of the accused. From the evidence on record, evidence was led and case based on section 296(2) proved against the appellant. And it is under the said section 296(2) that the appellant was convicted and sentenced on, not section 295 which only give a general definition of the offence of robbery. I am therefore not convinced by the submissions of the appellant that the charge sheet herein is unconstitutional, null and void.

36. Section 296(2) of the penal code provides for the sentence of death for the offence of robbery with violence. The appellant was sentenced to serve 15 years imprisonment. I find this sentence both legal and proper.

37. In conclusion, I do find any merit in the appeal of the appellant (undated) filed herein on June 4, 2019. I dismiss the same. The appellant shall serve the sentence as ordered by the trial court. For avoidance of doubt and pursuant to section 333(2) of the Criminal Procedure Code, this sentence shall run from October 19, 2017, the date the appellant was first arraigned in court. Orders accordingly.

HON. D. O. OGEMBOJUDGE17TH MAY 2022. COURT:Judgment read out in open court in presence of the appellant (Kitengella Prison) and Ms. Oduor for the state.HON. D. O. OGEMBOJUDGE17TH MAY 2022.