[2024] KEHC 10907 (KLR)

Ndung’o v Republic (Criminal Appeal E004 of 2024) [2024] KEHC 10907 (KLR) (18 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10907 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E004 of 2024

LM Njuguna, J

September 18, 2024

Between

John Muriithi Ndung’O

Appellant

and

Republic

Respondent

(Appeal arising from the decision of Hon.J.W Gichimu (S.PM) in the Senior Principal Magistrate’s Court at Runyenjes Criminal Case No.E257 of 2022 delivered on 17th January,2024)

Judgment

1. The appellant filed a petition of appeal dated 22nd January 2024 seeking for orders that the appeal be allowed, the conviction be quashed, the sentence imposed be set aside and the appellant be set at liberty. The appeal is premised on the following grounds:a.That the learned trial magistrate erred in law and fact by failing to note that the ingredients of the offence were not proved to the required standard;b.That the learned trial magistrate erred in law and fact by failing to note that the identification of the alleged perpetrator was in doubt;c.That the learned trial magistrate erred in law and fact by relying on insufficient, contradictory and uncorroborated prosecution evidence to convict the appellant;d.That the learned trial magistrate erred in law and fact by rejecting the appellant’s watertight defense without giving cogent reasons;e.That the learned trial magistrate erred in law and fact by failing to note that most of the prosecution witnesses were untruthful hence the case was a frame-up; andf.That the learned trial magistrate erred in law and fact by believing a single eye-witness, contrary to section 124 of the Evidence Act.

2. The appellant was charged with the offence of robbery with violence contrary to section 295 as read together with section 296 of the Penal Code. The particulars of the offence are that on the night of 25th & 26th June 2022 at Lake view area within Embu West subcounty of Embu County, the appellant, jointly with others not before court, being armed with a dangerous weapon namely a kitchen knife, robbed Peter Njeru Richard of Kshs.506,451. 48/= and immediately before and after such robbery did use violence to the said Peter Njeru Richard. The appellant pleaded not guilty to this charge and the plea was duly entered. The matter went to full hearing,

3. PW1 was the victim who stated that on 25th June 2022 at around 11. 00 p.m, he had been invited by Fridah Mwende to her house in Dallas estate to visit her. That after about 10 minutes of his arrival, there was a knock on the door and when she opened, 2 men and one lady entered the house and one of the men asked him what he was doing in his house. That the man started beating him and stepping on his face before removing his clothes. He took photographs of him in his underwear and threatened to post them in the Embu online platform on Facebook. He stated that the man who assaulted him threatened to cut his private parts with a kitchen knife and he was asking for an iron box to burn him.

4. He testified that the other 2 people who had entered the house were just sitting there and the man who assaulted him took his phone and demanded his passwords for M-pesa and mobile banking. That he continued to beat him while Fridah Mwende and the other 2 people left the house and they stayed for 3 hours with his phone, during which time they transacted a total of Kshs.503,000/= both from M-pesa and from his bank account using mobile money. That they took his car keys but they were unable to start the car because it had a cut-out. He stated that when he was left alone in the house, he tried to leave but he found the gate locked. That later, Fridah Mwende and her accomplices returned his car keys and phone and they told him to leave.

5. He discovered that his Safaricom simcard was missing and he reported the loss at the Safaricom shop. He later discovered that unauthorized transactions had been made through his Safaricom line and the bank account and he duly alerted the service providers who blocked the accounts. That the bank managed to reverse a transaction of Kshs.200,000/= via pesalink. That Fridah Mwende continued to call and threaten him to reverse that transaction or else she would leak his photos onto the online platform.

6. He reported the incident to the police. He stated that he identified the accused person through an identification parade and he knew him because at the time of the incident, there were security lights in the home and he had spent a significant amount of time with him. He stated that he did not know the appellant before that day and he did not have any other weapon besides the knife he had picked in the house. He also stated that he did not authorize any of the transactions made using his phone.

7. On cross-examination, he stated that Fridah Mwende was his friend and she is the one who let him into the house. That the transactions made were to the appellant and phone numbers registered to other people. That by the time he was reporting the matter to the police, he did not have his financial statements showing exactly how much money he had lost. That he left Fridah’s home around 5-6AM but the robbers had left earlier, leaving him in the house. That he positively identified the appellant through an identification parade as the man who assaulted and robbed him.

8. PW2 was I.P. Serah Muthoni Guchu the DCIO Embu. She stated that she conducted the identification parade and that she informed the appellant about the identification parade which had 8 individuals. The appellant opted to stand between positions 4 & 5 and he was positively identified by PW1. She stated that the appellant was known to her since he had been arrested severally before. Upon cross-examination, she stated that she conducted the identification parade according to the procedure and that she informed the appellant of his right to have an advocate or a family member present during the parade but he said he was satisfied. That there was no contact between the appellant and PW1 before the parade.

9. PW3 was Celeste Njeru who was the caretaker of the rental units belonging to one Henry Kimuja. He stated that Fridah Mwende had rented unit number 16 for about 2 months and she was paying Kshs.4,700/= per month as rent. That she used to live in the house for 1 or 2 days every week and she had told him that she was a miraa trader. He produced a rent payment receipt for the month of May 2022 issued to Fridah Mwende and he stated that the tenant vacated the house in the middle of the month claiming that she was relocating to Mombasa.

10. He stated that on the material night, there were no visitors since he was the one with the keys to the gate. That he had never seen the accused and that if anyone had wanted access, he would have been the one to open the gate but on that night, he didn’t. On cross-examination, he stated that the plot has an electric fence and that on the material night, he did not open the gate for any strangers to enter or to leave the compound. That before he was summoned by police, nobody had complained of any harm done to them in the plot. He stated that from 6PM to 12 midnight, the gate is usually open and there is usually a lot of movement in and out of the plot before midnight.

11. PW4 was Fredrick Musau, the Branch Manager, Cooperative Bank, Embu branch. He stated that the complainant reported to the bank that he had been robbed and money was withdrawn from his bank account without his authority. He requested that his account be blocked and the transactions made be reversed. That the bank managed to reverse a transaction of Kshs.200,000/= that had been sent to another account through Pesalink but the others were not reversed. He produced a statement showing that between 25th and 26th June 2022, 9 transactions were made from the complainant’s account. On cross-examination, he stated that the transaction of Kshs.200,000/= did not show the name of the account holder but only showed the account number. That the complainant is the one who requested that the account be blocked as there were unauthorized transactions.

12. PW5 was P.C. Catherine Ngunjiri of DCI Embu East who was the investigating officer in the case. She stated that the complainant reported the incident at Embu Police Station in the manner narrated by PW1. The complainant’s clothes that were torn during the incident were produced as evidence. She rehashed the facts of the case and the unauthorized transactions that had been made from the complainant’s bank account and M-pesa. That following investigations, the appellant and his accomplice were arrested and charged with the offence of robbery with violence.

13. On cross-examination, she stated that the complainant described the appearance of the appellant to the police and he led them to Fridah’s house but she did not take photos of it. That the knife used to threaten the complainant was not recovered. That the sim cards that received money from the complainant’s accounts were not recovered. That the sum of money indicated in the charge sheet is exclusive of the Kshs.200,000/= that was reversed by the bank.

14. PW6 was I.P. Daniel Kiengu of DCI headquarters who stated that he was requested to extract, WhatsApp sms, photos and related matters. He noted that the phone had been used with 14 different sim cards including the one used last that was registered in the name of the appellant (0794967262), from which he extracted call logs, whatsapp messages, text messages and deleted messages. On cross-examination, he stated that he did not examine the numbers that communicated with appellant’s sim card, neither did he extract any messages from those numbers.

15. At the close of the prosecution’s case, the court found that the appellant had a case to answer and thus placed him on his defense.

16. The appellant testified as DW1 stating that on 24th June 2022, he attended a graduation ceremony in Thika and afterwards, he went drinking at a club the whole night in Kerugoya. That the following day, being a Saturday, he went back to the club to drink until 5PM and then he boarded a matatu to Embu. That in the month of July, he made a deal with Fridah Mwende whom they agreed would buy miraa from him and so he went to Mbeere to harvest the crop. That when he tried to call Fridah, he did not have credit and so he used his employee’s phone to reach her severally but she could not be found and so he stayed in Mbeere until he had sold all the miraa he had.

17. He stated that while on his way back to Embu, he was intercepted by police officers who had a warrant to arrest him for absconding court in another matter. That while he was in the police cells, he was taken to an identification parade where the complainant herein identified him and he was arraigned in court. On cross-examination, he stated that after attending the graduation ceremony, he returned to Embu at 5. 00 p.m on 25th June 2022 and he did not leave his house that night. That Fridah had given him her number in May and had told him to call her after 2 months and that before the miraa deal they struck, he did not know her.

18. After the close of the defense case, the trial court considered the evidence and found the appellant guilty and it convicted him accordingly. He was sentenced to death.

19. In this appeal, the court directed the parties to file their written submissions but only the respondent complied.

20. In its submissions, the respondent placed reliance on sections 295 and 296 of the Penal Code and the cases of Oluoch v Republic [1985] eKLR and Mohamed Ali v Republic [2013] eKLR and stated that the elements of the offence were proved beyond reasonable doubt. That the appellant was positively identified as the perpetrator because the complainant spent a significant amount of time with him that night.

21. Further reliance was placed on the case of MTG v Republic [2022] KEHC 189 KLR and the respondent submitted that the conviction cannot be disturbed on the basis of minor contradictions in the evidence. That the appellant’s defense did not create reasonable doubt. It relied on the case of Bernard Gacheru v Republic [2002] eKLR and stated that the sentence meted out by the trial court is based on correct principles of the law and the appellant has not given this court reasons to review it.

22. From the grounds of appeal and the submissions made, in my view, the issues for determination are as follows;a.Whether the offence was proved beyond reasonable doubt;b.Whether the evidence was contradictory; andc.Whether the death sentence should be reviewed.

23. It is the role of this appellate court to re-examine the evidence to reach its own finding. This was stated in the case of Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal held:“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.2. 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; 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.”

24. On the issue of whether the offence was proved beyond reasonable doubt, I wish to discuss the elements of the crime itself as provided for under section 296(2) of the Penal Code. It provides:“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

25. In the case of Charles Mwai Kimani v Republic [2022] eKLR the court cited the case of Jeremiah Oloo Odira v Republic [2018] eKLR where the Learned Judge encapsulated the aforementioned sections and elaborated on the offence of robbery with violence as follows:“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -i.The offender is armed with any dangerous or offensive weapon or instrument, orii.The offender is in the company of one or more other person or persons, oriii.The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person”

26. If these elements are proved to the required standard, the appellant will be found guilty, given the wording of the relevant provision. This was the position of the court in the case of Republic v Dima Denge & Others [2013] eKLR where the court stated:“The elements of the offence under Section 296 (2) are, however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction. This was considered at length by this Court in Johana Ndungu v RepublicCriminal Appeal No. 116 of 1995 (unreported;)“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or properly at or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in section 296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section.””

27. PW1 testified that on the night of the incident, he was visiting his friend Fridah Mwende (who was the appellant’s co-accused) at her house at about 11PM when the appellant went into the house and asked why he was there. That the appellant threatened him with a kitchen knife before stripping him naked and demanding for his accounts PIN numbers. That he beat him up and threatened to post his nude photos on social media if he did not comply. He stated that he complied and gave them his PIN numbers and they withdrew money from his M-pesa and bank accounts into several phone numbers.

28. He stated that they wanted to take his car but because it had cut-out, they returned his keys, beat him up more and then let him go after returning his phone. That they made away with Kshs.506,451. 48/= but Kshs.200,000/= was reversed by the bank after he reported the unauthorized transactions. PW2 and PW5 stated that the appellant was identified through an identification parade conducted by PW2. PW2 stated that the appellant did not exercise his right to have a relative or an advocate present at the identification parade despite having been informed of this right. That he stood between positions 4 & 5 in the line of 8 individuals. That the complainant identified the appellant by touching him. That the appellant was satisfied that the parade was conducted fairly and he signed the parade forms. In the case of Joseph Ngumbau Nzalo v Republic [1991] 2 KLR pg 212, the Court of Appeal observed thus:“A careful direction regarding the condition prevailing at the time of identification and the length of time for which the witnesses had the accused person under observation, together with the need to exclude the possibility of error was essential.”

29. PW1 testified that he spent about 3 hours with the appellant that night, being reasonably enough time to identify him if he saw him again and that the home was well lit. In my view, the appellant was properly identified by PW1 in his testimony and PW2 through the identification parade. From the evidence, it is clear that the appellant and his accomplices stole from complainant’s bank and M-pesa after threatening him if he did not give them the passwords to the accounts. PW4 produced bank statements showing the unauthorized transactions while PW6 produced evidence of examination of the appellant’s phone and it was clear that he was in communication with his co-accused, Fridah Mwende around the time of the incident.

30. All these circumstances considered wholesomely prove that the appellant committed the offence while in the company of others while armed with a kitchen knife which he used to threaten the complainant. There may have been minor inconsistencies in the testimony but the same does not go to the root of the charge and the testimony. In the case of Erick Onyango Ondeng’ v. Republic [2014] eKLR the Court of Appeal cited with authority the Ugandan case of Twehangane Alfred v. Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 where it was held:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

31. In his defense, the appellant stated that he returned to Embu on 25th June 2022 at 5PM after attending a graduation ceremony. That he did not leave his house that night. However, this testimony is not enough to displace the prosecution’s evidence placing him at the scene. That is to say that he cannot sufficiently account for his whereabouts that night and how his phone was used and connected with some of the transactions.

32. As to whether the sentence should be set aside, having convicted the appellant, the trial court sentenced him to death, which is the sentence prescribed under section 296 of the Penal Code. The death sentence is still a legal sentence according to the Judiciary Sentencing Policy 2023. The Supreme Court has recently guided that the courts should mete out statutory prescribed sentencing without departing from them. This was stated in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR).

33. In the end, I find that the appeal is devoid of merit and it is hereby dismissed.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF SEPTEMBER, 2024. L. NJUGUNAJUDGE.........................................for the Appellant.........................................for the Respondent