[2022] KEHC 16203 (KLR)

Mwangi v Republic (Criminal Appeal 63 of 2013) [2022] KEHC 16203 (KLR) (6 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16203 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal 63 of 2013

J Wakiaga, J

December 6, 2022

(FORMERLY CRIMINAL APPEAL NO 224 OF 2009 AT THE HIGH COURT AT NYERI)

Between

Julius Kimani Mwangi

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in criminal case no 829 of 2006 at CMCC MURANGA)

Judgment

1. The appellant was charged with the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code, the particulars of which were that on the second day of March, 2006 at St Mary village in Muranga district jointly with others not before the court attempted to rob Jonathan Kamau Reuben of his motor bike and cash ksh 2000 all valued at ksh 102, 000 and immediately before the time of such attempted robbery used actual violence.

2. He pleaded not guilty and was tried, convicted and sentenced to death. Being aggrieved by the said conviction and sentence, he filed this appeal and raised the following grounds of appeal:a.The trial magistrate erred in law and facts with regard to the identification of the assailants and failed to consider circumstances at the scene was not favourable for positive identificationb.The prosecution evidence was not corroboratedc.The appellant defence was not taken into account and was rejected without any good reason.

3. Directions were given that the appeal be heard by way of written submissions and for the appellant it was submitted that the evidence of the complainant was that the appellant was an intruder who was not present during the alleged robbery as the robbers stayed with her for fifteen minutes and she was therefore able to identify them with either voice, appearance and or body size.

4. It was submitted that the prosecution case was based on circumstantial evidence as they were no single eye witness called by the prosecution and that the exhibit produced was procured in violation of article 50(4) of the Constitution and as was stated in the case of Teder v Republic, it must be narrowly examined and each link in the chain must be closely separately examined as was stated in Mwangi and another v Republic. It was therefore submitted that the court should not order a retrial as was stated in the cases of Ahamed Summer v Republic (1964) EA 48 and Pascal Clement Braganza v R (1957) EA 152.

5. It was contended that the sentence mated out was harsh and that the court should consider and apply the provisions of section 333(2) of the Criminal Procedure Code to take into account the period the appellant spent in custody.

6. On behalf of the state it was submitted that the all the ingredients of the offence were proved as the appellant was in the company of another person, armed with a gun and inflicted injuries upon the complainant and his wife in an attempt to rob them and that the appellant was identified by PW1 and that the appellant was hit with a panga during the incidence. It was submitted that there was adequate lighting which enabled the witness to recognise the appellant.

7. It was submitted that the evidence was corroborated through the DNA results with matched the blood found on the panga with that of the appellant and that the appellant defence was considered and rejected as a mere denial.

Proceedings 8. This being a first appeal, the court is under a duty to re-evaluate the evidence tendered before the trial court and to come to its own determination thereon while giving allowance to the fact that unlike the trial court, it did not have the benefit of seeing and hearing witnesses.

9. PW1 Jonathan Kamau testified that as he was packing his motor bike, he saw two people, one carrying a panga while the other had an object hidden under his coat. They ordered him to surrender his money or else they would kill him. The one with the panga moved closed to him while the one with a gun threatened to shoot him and that the appellant cut him with the panga and that they straggled and he took the panga from him which he used to cut him on the neck and shoulders. In the process he ran away leaving the panga and his sweeter.

10. PW2 Charity Wanjiku Kamau stated that the complainant came into the house screaming and when she went out she saw him standing with someone who held a panga and asking for money. Behind them was a man holding a pistol who told her to keep quite or else she will kill her husband. She then saw him cut PW1 with the panga before cutting her on the middle and index finger. It was her evidence that PW1 ambushed him and cut him with the panga. In cross examination she stated that the neighbours were scared and therefore just peeped through their windows.

11. PW3 Dickson Kugua examined the complainant and his wife ad confirmed their injuries which he classified as harm and the age six hours having been caused with a sharp object, while PW4 John Kimani Mungai carried a DNA analysis on the panga and confirmed that it matched that generated from the blood of the appellant and that of PW1 and PW2 and stated that the panga had mixture of blood stains.

12. PW5 PC John Wahome responded to the radio call on an attempted robbery and apprehended the appellant who was had severe cut on the back of his neck and when asked what happened, he stated that he was attacked when tried to pass some people who were stealing a motor cycle from someone but the complainant appeared and explained to them what had happened leading to the appellant being charged.

13. PW6 PC Benson Musai recorded statements from the witnesses and took the exhibits to the government chemist for analysis. It was his evidence that the appellant was not known to him before the said date.

14. When put on his defence the appellant stated that on his way home he saw three people who ordered him to sit down and when he declined, they hit him in the fore head and took his money and when he went for assistance he was cut on the back with a panga by Kamau before he was arrested by the police officers who had a panga and a sweeter. In cross examination he stated that he came to know PW1 in court when he came to testify and that he was employed by Peter Maina as a mason.

Determination 15. From the proceedings herein and the submissions, the only issues for determination in this appeal are a) whether the appellant was properly identifying b) whether the appellant defence was considered and c) whether the sentence herein was harsh.

16. On the identification of the appellant, the evidence tendered before the trial court was that the same was arrested at the scene soon after PW5 responded to the report through the radio call and he corroborate the evidence of the complaint that in the process of the straggle he had cut the appellant with the panga which he had used to attack him and his wife. The appellant was placed at the scene through the DNA analysis that match his blood with that found on the panga.

17. I am therefore satisfied that the circumstantial evidence herein corroborated the direct evidence of the prosecution witnesses and therefore the identification of the appellant was free from error and his conviction safe. I have noted that the trial court warned herself of the dangers of convicting based on the evidence of identification in difficult circumstance but correctly held that the circumstantial evidence pointed to the appellant and no other person and therefore find no fault with her holding thereon.

18. As regards the appellant defence, the same was contradictory and did not dislodge the prosecution case and upon evaluating the same, I find and hold that it was not cogent as the appellant could not have been attacked by the complainant if he had sought assistance having been attacked as alleged and further the same was at variance with what he had told PW5 the arresting officer and therefore dismiss the same.

19. I would therefore agree with the finding of the trial court that all the ingredients of the offence were proved beyond reasonable doubt and find no merit on the appeal against conviction.

20. On sentence, the same is at the discretion of the trial court and an appellate court will only interfere with the same if the court acted on wrong principles. In sentencing the appellant I have noted that the appellant did not offer anything in mitigation and the trial court did not take into account the fact that the appellant was charged with attempted robbery with violence meaning that the same did not succeed in the mission and in the process was injured and sustained a scar which he will live with for the rest of his life and therefore a sentence of death though legal was a little harsh in the circumstances of this case.

21. I would therefore allow the appeal on sentence and substitute the same with an imprisonment term of thirty years from October 23, 2009 when he first appeared in court having taken into account the provisions of section 333(2) of CPC.

22. The appellant has right of appeal on both conviction and sentence while the state has a right of appeal on sentence and it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 6th DAY OF DECEMBER 2022J WAKIAGAJUDGEIn the presence ofCourt assistant C MutahiMiss Otieno for the stateAppellant in person