[2004] KEHC 496 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL 568 OF 2001

FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO. 32 OF 1999 OF THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KIAMBU

NAFTALI KAMAU MBUGUA……………………….……..APPELLANT

VERSUS

REPUBLIC………………………………………………….RESPONDENT

JUDGEMENT

There are three appellants in this appeal, all of whom were convicted for ATTEMPTED ROBBERY WITH VIOLENCE, contrary to section 297 (2) of the Penal Code. The said three appellants were as follows.

(i) NAFTALI KAMAU MBUGUA – 1st Appellant. He was originally the 3rd Accused.

(ii) DANIEL SENTEU TIPANKU – 2nd Appellant. He was originally the 4th Accused.

(iii) LABAN KAGUARA KAGUNYA – 3rd Appellant, who was originally the 1st Accused.

The three appellants were said to have raided a construction site at Nyari Estate Nairobi, where Comhard Limited had been contracted to put up a residential house. The date of the incident was 21st May 1999, when PW1, the site agent had withdrawn money from ABC Bank, for use in paying the workers. The said money, amounting to Kshs 95,204/= was left by PW1, in the hands of PW2, the foreman. Shortly after PW1 handed over the money and had left the site, some thugs arrived. The said thugs were armed with pistols. They demanded keys of a motor vehicle from someone who had come to collect a plumber from the said site. After the man surrendered his car keys, the thugs demanded that the workers show them be shown Kiarie, PW2.

However, some ladies outside the site started screaming, and the thugs decided to make good their escape. As they were running away, the workers at the site, with some help from Administration Policemen who were guarding the neighbouring residential house, managed to catch up with the 2nd Appellant, and arrest him.

After he was taken to the Police Station, the 2nd Appellant is said to have volunteered to show the police officers the whereabouts of the other thugs. In effect the other appellants were said to have been arrested with the help of the 2nd Appellant.

On his part, the 3rd Appellant was also said to have been in possession of a firearm without an appropriate certificate. He was convicted for that offence too.

In their appeals against conviction and sentence, the 1st and 2nd appellants both point out that no witness testified about having seen them at the time the offence was committed. Also both of them contended that they were not arrested with any exhibit that could connect them to the offence. From a factual perspective, the 2 appellants are right. However, that alone would not be ground enough to set aside their conviction. Many a time, accused persons can be properly convicted on the basis of circumstantial evidence. Therefore, the mere fact that no eye-witness testified that they saw the appellants at the material time, and also just because they were not arrested with exhibits connecting them to the offence may not be sufficient to dislodge conviction. However, we recognise that in the light of those circumstances, the prosecution would then have had an uphill task in discharging its obligation in proving the case beyond any reasonable doubt.

Next, the 1st Appellant submitted that PW11 had testified in a language which he did not understand. He says that by so doing, he was prejudiced. In relation to this submission, the facts were that on 7th September 2000, when PW11 begun his testimony, the advocate for the 1st appellant was not in court. We understand the appellant to be saying that as the proceedings were conducted in English, a language which he did not understand, he did not follow that part of the proceedings. On perusing the record, we note that Mr. Mbugua, advocate for the accused turned up late on the material day. After tendering his apologies to the court, counsel sought and was allowed some 10 minutes to peruse the record, before the case went on. We also note that after perusing the re cord, the advocate did cross –examine the witness.

In our considered opinion, the 1st appellant could not have been prejudiced in any way, as his advocate was accorded the opportunity to peruse the proceedings which were undertaken in his absence. We therefore find no merit in this criticism of the learned trial Magistrate.

At this juncture, we wish to point out that the next sets of issues were common to all the 3 appellants. We shall therefore be dealing with them in that sense.

Unqualified Prosecutor

The appellants submitted that part of the proceedings were prosecuted by unqualified prosecutors. The record shows that on 28th December, 1999, Corporal Waithaka was the prosecutor. For that reason, the appellants contend that the proceedings were a nullity, as the said Corporal Waithaka was not qualified to be appointed as a prosecutor.

The position is that on the day when Corporal Waithaka was cited as the prosecutor there was nothing more than a mention of the case. As far as the appellants are concerned, a mention was an integral part of the prosecution, and therefore since it was conducted by an unqualified prosecutor, it rendered the entire proceedings a nullity.

In the decision by the Court of Appeal in the case of Roy Richard Elirema & Another versus Republic, Criminal Appeal No. 67 of 2002 (at Mombasa), the court cited with approval the following words from Uganda versus Milenge & Another [1970] EA 269

“it is essential to consider the powers of a public prosecutor such as the State Attorney in this case. The first elementary principle is that he is the person who decides what witnesses to call and that he, at any rate, at the trial, has complete control of the prosecution in court. He can at any stage of the prosecution close his case and call no further evidence, and it is from their power that the practice has arisen for a prosecutor who does not desire to proceed with prosecution against an accused person to offer during the course of the trial “no evidence” or “no further evidence.”

Bearing in mind the above –cited role of the prosecutor, we hold the considered view that the “mention” of a case does not in any way, constitute prosecution thereof. Indeed, a “mention” is no more than an administrative function, which does not advance the prosecution in any manner whatsoever. It is a function which was introduced solely for the purposes of enabling the court to keep tabs on the accused person, on a regular basis. For that reason, if the person who is cited as a prosecutor, during a mention, is not qualified, that would not invalidate the proceedings, for he would not have prosecuted the case. For those reasons, we find no merit on this ground of appeal.

The appellants also submitted that the learned trial Magistrate erred by allowing PW13 to continue his testimony without being reminded that he was on oath. We have verified from the record that PW13 to continue his testimony without being reminded that he was on oath. We have verified from the record that PW13 testified on 7th September 2000. Before he commenced his evidence, PW13 was sworn. His evidence was interrupted by a Trial –within a Trial. At the close of the said trial within a trial, the learned trial Magistrate made a ruling to the effect that the disputed statement under inquiry was admissible in evidence. The magistrate then recalled the witness (PW13) to the witness box, for purposes of producing the statement, as an exhibit in the court. It is at that point that the record does not show that the witness was re-sworn.

In our considered opinion, as the witness was being re-called, to continue with evidence on the same date, it was not mandatory that he be re-sworn. But in any event, we hold that even if there had been a failure to either re-swear PW13 or to remind him that he was still under oath, that failure was not prejudicial to the appellants. Therefore, if indeed it was an error, it would not be fatal to the prosecution.

Next, the appellants submitted that the offence of attempted Robbery with Violence was not proved by the prosecution. The reasons for so saying are that none of the witnesses testified that any of the thugs who raided the buildings site demanded any property from their victims. A reading of the evidence on record shows that there is some truth in that assertion.

Apparently, one of the robbers entered the site, while holding a pistol high up in the air. They went towards the office where PW2 was. Meanwhile, they had ordered the workers to lie down, and the workers had complied.

The robbers accosted someone who had arrived at the site, in a car, with a view to collect a plumber. The person’s car keys were taken off him by the robbers, who then shouted that they wanted Kiarie, (PW2). At that point, some women who were outside the compound screamed, and the thugs ran off.

Whilst it is true that PW2 had the money, which was to be paid out to the workers, and therefore that it was probable that the robbers were after that money, there cannot be certainty about that fact. As the appellants have said in their submissions, it is possible that they could have been hired assassins or alternatively persons out to kidnap the said Kiarie. However, because the robbers did not utter any words which would indicate that they were after the money, it was no more than a presumption that that is what they were after.

On the other hand, this court believes that it would be wrong to weigh that piece of evidence in isolation from the rest of the case. We say so because a reading of the statements from the 2nd and 3rd appellants, reveals that there mission was to rob the persons at the site, of money. Those statements were admitted in evidence after the trial court conducted trials within trials, and thus could be properly taken into account, when weighing the evidence.

Of course, we are well aware that;

“……..a trial court should accept any confession which has been retracted on repudiated or both retracted and repudiated with caution, and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if it is corroborated in some material particular by independent evidences accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true.”

- per the Court of Appeal for East Africa, in TUWAMOI VERSUS UGANDA [1967] EA 84 at p.91

Upon reading the statements, it is quite evident that the details set out therein tally with the evidence of the prosecution witnesses, rega5rding the incidents of that date. In principle therefore, the trial court would have been entitled to rely upon the said two statements when arriving at the decision to convict the appellants.

But in relation to the 3rd Appellant, we note that the learned trial Magistrate ruled that his charge and caution statement was inadmissible. Thereafter, in the Judgment, the learned trial magistrate addressed herself thus:

“The only other and very important issue as far as court is concerned is whether the accused persons were the persons who attempted to commit the robbery. They have denied the charge in their unsworn statements in court. The only evidence against Accused 1, 2, and 3 is that they were mentioned by accused 4, who led the police to their homes. This is coupled with the statements under inquiry. I am alive to the fact that the repudiated and/or retracted the same, and so by law it requires corroboration by independent evidence before it can be relied upon to convict. This corroboration is offered by the evidence of PW2 and PW4. It is his statement also which led to the recovery of the pistol from accused 1. This is also corroboration.”

From the aforegoing extract, from judgment, it is apparent that the learned trial Magistrate relied heavily on the statement of the 3rd Appellant, in arriving at the decision to convict the appellants. Clearly, that is a fatal mistake, when it is borne in mind that the court had earlier upheld the objection by the defence counsel to the said statement.

Meanwhile, as regards the contention that the statements ought not to have been admitted in evidence by virtue of the provisions of section 25 A of the Evidence Act, we hold that the appellants are not right.

Section 25 A of the Evidence Act reads as follows;

“A confession or an admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved unless it is made in court.”

This provision was introduced into our statute books by way of Act No. 5 of 2003. In effect, the section was not in existence as at the time of the trial. We therefore hold that it could not be applied retrospectively to the proceedings before the trial court.

Another issue, which we find important was in relation to count 2. The court did convict the 2nd Appellant for being in possession of a firearm without a firearm certificate. To our minds, two points arise from that conviction. First, PW9, PC Dennis Kako testified that it is he who recovered the pistol from the house belonging to the 2nd appellant’s cousin. This is what he is recorded as having said;

“We were shown that house. We knocked. We found his cousin Kimani. Accused 1 was also sleeping in the same bed. We found the pistol which had been wrapped in Kingara’s clothes.”

The pistol was said to have been identified as having serial number 81050095: that is the number which PW9 saw when he recovered the pistol. However, when he was shown the pistol, Exhibit 3, in court, PW9 did not see any serial number on it. That prompted him to comment that the pistol may have been tampered with. To our minds, that piece of evidence was sufficient reason for rejecting the pistol which had been adduced in evidence.

Also, as the 2nd appellant was at his cousin’s house, and both of them were at the house when the pistol was recovered, we believe that it was wrong for the witness and the court to believe that the pistol was in the possession of the 2nd appellant. The prosecution ought to have led more evidence so as to justify their conclusion that even though the 2nd appellant was sleeping in the same bed with his cousin, at the house of the said cousin, the pistol belonged to the appellant. In the absence of such further evidence, we find that it would be unsafe to conclude that the pistol was recovered in the appellant’s possession.

For the foregoing reasons, we find merit in the appeals. We therefore allow the appeals, quash conviction and set aside the sentences in respect to all the three appellants.

We further direct that the appellants be set at liberty unless they are otherwise lawfully held.

Dated at Nairobi this 4th day of November, 2004

J. LESIIT

JUDGE

FRED A. OCHIENG

AG JUDGE

Delivered in the presence of

Gateru for the State

All present for the Appellants

Mr. Odero/Muya – court clerks