[2019] KEHC 6988 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL APPEAL NO. 148 OF 2012

NEWTON KAMIDI.............................................1ST APPELLANT

ROBERT SITUMA.............................................2ND APPELLANT

-VERSUS-

REPUBLIC..............................................................RESPONDENT

(Being an appeal from the Judgment, conviction and sentence of Hon. T. Nzioki, PM, delivered on the 13th day of August 2012 in Eldoret Chief Magistrate's Criminal Case No. 35 of 2011)

JUDGMENT

[1] The two Appellants were charged before the Chief Magistrate's Court with two Counts of the offence of robbery with violence contrary to Section 296(2) of the Penal Code, Chapter 63 of the Laws of Kenya. It was alleged that on the night of 16th and 17th December 2010, at Nzoia Village, Nzoia Location in Lugari District within Western Province, jointly with another not before the court, they robbed John Ndunde Sawanga of one mobile phone make Nokia 1700 valued at Kshs. 5,000/= and that immediately before the time of the robbery, they wounded the said John Ndunde Sawanga.

[2] The particulars in support of Count II were that, on the night of 16th and 17th December 2010 at Nzoia Village, Nzoia Location in Lugari District, jointly with another not before the court, they robbed Laban Liyayi Mugairwa of one mobile phone, Make Samsung, money in cash Kshs. 900/= the property of the said Laban Liyayi Mugairwa; and 36 chickens the property of Veronicah Muhonja and that immediately before the said robbery they used personal violence against Laban Liyayi Mugairwa.

[3] Although they denied those allegations, the Learned Trial Magistrate, Hon. T. Nzioki, PM, believed the evidence presented against them by the Prosecution and found them guilty of Count I in a considered Judgment that was delivered on 27 June 2012. The matter was thereafter listed for Sentence Hearing on 13 August 2012 when the two Appellants were sentenced to life imprisonment. They were otherwise acquitted of Count II for lack of sufficient evidence.

[4] Being aggrieved by their conviction and sentence in respect of Count I, they filed this appeal on 24 August 2012, contending that:

[a] The Learned Trial Magistrate erred in law and fact in convicting and sentencing them to life imprisonment without giving adequate consideration to their defence;

[b]The Learned Trial Magistrate misdirected himself on the essential ingredients of the offence of robbery with violence as provided for in Section 296(2) of the Penal Code;

[c] The Learned Trial Magistrate erred in law and fact by failing to independently analyze and/or evaluate the defence evidence, as required by law, before drawing his conclusion;

[d] The Learned Trial Magistrate erred in law and fact by convicting and sentencing the Appellants without due regard to their mitigating circumstances;

[e] The Learned Trial Magistrate erred in law and fact by failing to appreciate that the Prosecution failed to call essential witnesses to corroborate the evidence of the eye witness;

[f]The Learned Trial Magistrate erred in law and fact by convicting and sentencing the Appellants without due regard and consideration of the Appellants' evidence;

[g] That their conviction was against the weight of the evidence as the Prosecution did not prove their case beyond reasonable doubt;

[h] That the Learned Trial Magistrate erred in law and fact by convicting and sentencing the Appellants without due regard to the discrepancies in the evidence presented by the Prosecution;

[i] That the Learned Trial Magistrate erred in law and fact by convicting and sentencing the Appellants by imposing a very harsh, improper and/or excessive sentence in the circumstances.

[5] Accordingly, the Appellants prayed that their appeal be allowed, their conviction quashed and the sentence imposed on them set aside. They thereafter filed separate amended Grounds of Appeal, essentially reiterating their initial Grounds of Appeal. Hence, the 1st Appellant opted to rely on the following Grounds of Appeal:

[a] That the Learned Trial Magistrate erred in both law and fact when he convicted him on the basis of contradictory and uncorroborated evidence;

[b] That the Learned Trial Magistrate erred both in law and fact in convicting him on the basis of shoddy evidence;

[c] That the Learned Trial Magistrate erred in both law and fact when he convicted him without considering that no prompt report was made regarding the loss of the phone;

[d] That the Learned Trial Magistrate erred in both law and fact by failing to observe that the essential witnesses were not called by the Prosecution;

[e] That on the whole, his conviction was against the weight of the evidence as the Prosecution did not prove their case beyond reasonable doubt; and therefore that his conviction was based on flawed procedure.

[6] The 2nd Appellant, on his part, raised the following Amended Grounds of Appeal:

[a] That the Learned Trial Magistrate erred in both law and fact by failing to consider that his identification was not established as by law required;

[b] That the Learned Trial Magistrate erred in both law and facts in convicting him without observing that the investigations were shoddily done;

[c] The Learned Trial Magistrate erred in both law and fact in convicting him on the basis of Amended Charges in respect of which his plea was not taken;

[d] That the Learned Trial Magistrate erred in both law and fact in convicting him without observing that the provisions of Section 200 of the Criminal Procedure Code were not adhered to;

[e] That the Learned Trial Magistrate erred in both law and fact in convicting him without observing that the Prosecution's case was riddled with contradictions;

[f] That the Learned Trial Magistrate erred both in law and fact when he dismissed his defence of alibi without observing that he was thereby exonerated from the crime;

[g] That the Learned Trial Magistrate erred both in law and fact in failing to observe that essential witnesses were not called to testify.

[7] Along with their Amended Grounds of Appeal, the Appellants filed written submissions herein, on which they relied in urging the appeal. They thus prayed that their appeals be allowed; which appeals were opposed by Mr. Mulamula, Learned Counsel for the State. According to Mr. Mulamula, all the essential ingredients of the offence of robbery with violence were proved before the lower court, notwithstanding any contradiction that there may be as to the nature of weapons used. He stressed the fact that the offenders were more than two in number and that they wounded the Complainant, and submitted that either fact was sufficient for purposes of Section 296(2) of the Penal Code. He further relied on Section 382 of the Criminal Procedure Code in answer to the submissions of the Appellants that the Prosecution case was contradictory in nature.

[8] Regarding the Appellants' contention that the evidence of identification was not satisfactory, Mr. Mulamula referred the Court to pages 29 and 30 of the Record of Appeal and urged the Court to find that the Appellants were properly identified by the Complainant, a neighbour of theirs and therefore a person who had known them well enough prior to the incident. As to the failure by the Prosecution to call some witnesses, Counsel submitted that a plausible explanation was given before the lower court for that omission. For instance, in the case of the Complainant's wife, it was explained that she feared for her life, hence her reluctance to either record a statement or testify before a court of law. Counsel accordingly urged for the dismissal of this appeal.

[9]This being a first appeal, it is expected of this Court to subject the evidence that was presented before the lower court to a fresh analysis and evaluation, for it to come to its own conclusions thereon. In Okeno vs. Republic [1972] EA 32by the Court of Appeal for East Africa made this point thus:

"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 whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...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 conclusion; 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..."

[10] It is therefore imperative to give a fresh look at the evidence that was adduced before the lower court; and having perused the proceedings of the lower court, it is notable that the Prosecution called a total of 6 witnesses, the first of whom was the Complainant, John Ndunde Sawanga (PW1). His evidence was that he retired to bed at about 10. 00 p.m. on the night of 16 December 2010; and that at about 2. 00 a.m., he heard noises from the home of his neighbour, Veronicah Muhonja, where doors were being banged by people who were menacingly demanding that the door be opened for them. He added that after about 5 minutes, he came out of his house carrying his mobile phone which also had the functionality of a torch; and that with the aid of the mobile phone/torch, he was able to see three people who were hitherto well known to him. He identified the three people before the lower court to be the two Appellants and one Robert Onyango who was not before the court at the time of his testimony. He added that the 1st Appellant had a panga, while the 2nd Appellant had a club; and that Robert Onyangoalso had a panga.

[11] PW1 further told the lower court that he enquired from the three men what the matter was; and that the 1st Appellant responded by stating that their mission was to kill him; and that he (the 1st Appellant) then ordered him to hand over his mobile phone to him; a command he obeyed, after which the 1st Appellant proceeded to cut him with his panga on the hand and head; and was promptly joined by the other two in assaulting him into unconsciousness. When he came to, he found himself at Moi Teaching and Referral Hospital three days later. He was confined in hospital for treatment until 28 December 2010 when he was discharged. He thereafter followed up the matter with the Police who had the Appellants arrested and charged.

[12] Martin Lubanga Sawanga (PW2) told the lower court that he was asleep on the night of 16th and 17th December 2010 when he heard somebody screaming for help and exclaiming, "thieves!", thieves!" On going out of his house, he discerned that the screams were emanating from the home of his neighbour, Veronica; and that on approaching Veronica's home, and with the benefit of the moonlight, he saw two people at the door armed with clubs. Out of fear for his life, he turned back and alerted his family and his brother Charles Sawanga of what he had seen. He also alerted other neighbours shortly before he heard screams from the home of his brother, John, (PW1). On going there, he met the 1st Appellant, a neighbour and friend, coming from the home of PW1, armed with a club. He recognized him and asked him to stop but the request was ignored by the 1st Appellant. He then proceeded to PW1's home and found him seriously injured. He administered first aid before escorting PW1to Kitale District Hospital in an unconscious state.

[13] Veronicah Muhonja (PW4) testified that she was then working at Eldoret Law Courts and was therefore in Eldoret Town on the night of 16th and 17th December 2010. She further stated that, at about 3. 00 a.m. on that night, she received a distress call from the caretaker at home, one Laban Luyai (PW3) to the effect that robbers had attacked him and stolen chicken, cash and a mobile phone; and that she advised him to report the matter to Nzoia Police Station. The following day, she went home and confirmed the robbery incident; and also got to learn that her neigbour, John Sawanga (PW1) had also been attacked and robbed.

[14] The evidence of Laban Luyai (PW3) was that he was asleep at the home of PW4 where he was then working as a caretaker, when he heard some noise. The door was being smashed with a metal bar as commands were bellowed for him to open the door. That before he could react, some people stormed into the house and hit him with a metal bar on the back of his head. He was ordered to lie down as the house was ransacked. His attackers demanded for money and so he showed them where to find his wallet containing Kshs. 900/=. He added that the robbers proceeded to take away the money, his Samsung mobile phone worth Kshs. 4,999/= and 36 chickens belonging to his employer; and that shortly after they left, he heard screams from his neighbour, John Sawanga (PW1).

[15] The Prosecution also called Dr. Joseph Embenzi (PW5)who was then based at Moi Teaching and Referral Hospital. He confirmed that he examined John Sawanga and filled a P3 Form in respect of that examination dated 5 January 2011. His evidence was that PW1 was unconscious when he was taken to their facility; and that he was presented with a cut wound on the neck as well as multiple cut wounds all over the head. He also had cut wounds on the right hand. An x-ray was done which revealed a linear fracture of the skull. The wounds were about three weeks old and were healing by the time he filled the P3 Form. In his opinion PW1's injuries were inflicted by a sharp object. He also noted that the patient had been treated at Kitale District Hospital and referred to their facility on 17 December 2010; and that he was discharged on 28 December 2010. PW5 produced the P3 Form as the Prosecution's Exhibit No. 1.

[16]The Prosecution's last witness was Cpl. Bernard Mureithi (PW6). He was then on duty at Nzoia Police Patrol Base when PW3 reported a case of robbery with violence that occurred the previous night in which he was robbed of Kshs. 900, his mobile phone and 36 chickens belonging to his employer. He added that PW3 also mentioned that one of his neigbours, John Sawanga (PW1), who responded to his distress call was also attacked and robbed. PW6 told the lower court that he proceed to the scene and confirmed that the house of PW3 had been broken into and entry gained through the window. He thereafter sent police officers to check on PW1 who had been admitted at Moi Teaching and Referral Hospital. He further told the lower court that since PW1 had recognized two of the culprits, the two were arrested on 26 December 2010 with the assistance of the area Chief. He confirmed that none of the stolen items was recovered. He also confirmed that he issued PW1 with a P3 Form which was duly filled and returned to him.

[17] In his defence, the 1st Appellant, Newton Kamidi Miheso (DW1), conceded before the lower court that he is PW1's neighbour. He however denied having robbed him as alleged. According to him, he went back home at 9. 00 p.m. on the night in question, had dinner and slept; and that he did not hear PW1, whose house is about 70-80 metres away from his, scream for help during that night. He added that he woke up the following morning and left home at 6. 00 a.m.; and that upon his return at 7. 00 p.m. on the 17 December 2010, he received information from one Victor Mutoli that there was a robbery in the village in which the Complainant, John Sawanga was injured; and a suspect arrested. Thus, the 1st Appellant denied having robbed PW1 and blamed his arrest and prosecution on a grudge between him and PW1.

[18] Robert Situma Kitai (DW2), the 2nd Appellant, told the lower court that he was then working as a tractor driver; and that PW1 was his loader. He denied that he was one of the people who robbed PW1 on the night of 16th and 17th December 2010. He stated that he got to know of the robbery incident on 17 December 2010 from a brother of PW1 called Joseph Ewoi. He otherwise conceded that he knows both PW1and PW3 very well.

[19] In Section 295 of the Penal Code,it is provided that any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. Further to the foregoing, Section 296(2) of the Penal Code, pursuant to which Count I was laid, stipulates that:

"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 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."

[20] In the premises, the Prosecution was under obligation to prove any of the following key ingredients of the charge:

[a] That the Appellant was armed with a dangerous or offensive weapon or instrument; or

[b] That he was accompanied by one or more other person or persons; or

[c] That immediately before or immediately after the time of the robbery, he wounded, struck or used any other personal violence against the Complainant;

[21] From the evidence adduced before the lower court, there is no dispute both PW1 and PW3 were attacked on the night of 16th and 17th December 2010 and robbed as alleged. PW1 gave uncontroverted evidence that at about 2. 00 a.m., he heard noise from the home of his neighbour, Veronicah Muhonja, where doors were being banged and that after about 5 minutes, he came out of his house carrying his mobile phone which he was then using as a torch; and that with the aid of the mobile phone/torch, he was able to see 3 people who were well known to him walking towards his house. He was then robbed of his mobile phone which he was using as a torch before being assaulted by the 3 people. He was beaten senseless and when he regained his consciousness, he found himself at Moi Teaching and Referral Hospital three days later.

[22] Dr. Embenzi (PW5) corroborated PW1's evidence and told the lower court that he examined PW1 on 5 January 2011 and was of the opinion that he had sustained grievous harm. In particular PW5 observed that PW1had sustained a cut wound on the neck; multiple cut wounds all over the head and cut wounds on the right hand; and that an x-ray was taken which revealed a linear fracture of PW1's skull. He also confirmed that PW1 was unconscious when he was taken to their facility on 17 December 2010; and that he was admitted for treatment from 17 December 2010 to 28 December 2010. PW5also produced the P3 Form before the lower court as theProsecution's Exhibit 1,augmenting his evidence as to his examination and findings.

[23] It is noteworthy that both Appellants were in agreement that the robbery did take place in which PW1 was robbed. What they disputed was the Prosecution contention that they were among the people who committed the offence. There was therefore sufficient evidence presented before the lower court to prove the ingredients of the offence of robbery with violence as provided for in Section 296(2) of the Penal Code,in that the offenders were more than two in number, and that they wounded PW1 at the time of the robbery, noting that it suffices to prove of any one of the ingredients (See Suleiman Kamau Nyambura vs. Republic [2015] eKLR). There was also uncontroverted evidence that the offenders were armed with dangerous weapons, namely, pangas, with which they almost killed PW1.

[24] Hence, the only contentious issue is the all-important question whether the Appellants were properly and positively identified to be some of the people who robbed the Complainant. In this regard, the Appellants questioned the evidence of identification that was presented before the lower court by PW1; who was the sole identifying witness. In particular, it was the submission of the 2nd Appellant that an identification parade ought to have been conducted and the relevant forms produced in accordance with the Force Standing Orders, granted that the offence was committed at night. The 2nd Appellant relied on Kitale High Court Criminal Appeal No. 36 of 2003: Sammy Kimaiyo Kimutai vs. Republic, wherein it was held that it was of utmost importance that an identification parade be conducted so as to minimize any possibility of mistake or error.

[25] There is no doubt that the incident occurred at night when it was dark; hence the need for a thorough examination and careful testing of the evidence of identification that was adduced before the lower court by a single witness, namely, PW1. Accordingly, in R. vs. Turnbull & Others [1973] 3 AllER 549,it was held that:

"...The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance: In what light: Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

[26]Similarly, in Wamunga vs. Republic [1989] KLR 426, the same principle was restated thus:

"It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction."

[27] How is this to be done? The Court of Appeal in the Wamunga Caseoffered some useful insights thus:

“It is at least essential to ascertain the nature of the light available. What sort of light, its size and its position relative to the suspect; are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of Senior Magistrates trying cases of capital robbery to make these inquiries themselves. Otherwise who will be able to test with the greatest care.”

[28] A look at the testimony of PW1 before the lower shows that he came out of his house carrying his mobile phone which had the functionality of a torch; and that with the aid of the mobile phone/torch, and at a distance of about 5 metres, he was able to see and recognize the two Appellants as well as a third person not before the court, whose name he gave as Robert Onyango.He was also able to see the weapons they carried, and therefore testified that the 1st Appellant had a panga, while the 2nd Appellant had a club; adding that Robert Onyangoalso had a panga. In the circumstances, and at 5 metres away, PW1 was in a position to see the 3 people well. Further to the foregoing,PW1 stated that he spoke to the three people and enquired from the three men what the matter was; and that the 1st Appellant responded by stating that their mission was to kill him; and that he (the 1st Appellant) then ordered him to hand over his mobile phone which he was using as torch; and proceeded to cut him with his panga on the hand and head; before being joined by the other two in assaulting him into unconsciousness.

[29] It is noteworthy that, in their evidence both PW4 and PW7testified that, at the earliest opportunity PW1disclosed that he had seen and recognized the two Appellants and that it was on that basis that PW7 caused their arrest. In the circumstances aforestated, I am satisfied, as was the Learned Trial Magistrate, that PW1 was in a position to see and identify the three people who attacked and robbed him. It is to be recalled that these were people hitherto well known to him. He said he had known the 1st Appellant for about twenty years and that his home is only fifty metres away from his. Thus, although it was the submission of the Appellant that an identification parade was a pre-requisite, such a parade would hardly serve any purpose where, as in this instance, the suspect was well known to the witness.

[30] More importantly, it is now trite that evidence of recognition is more reliable than that of identification of a stranger. Hence, in Anjononi & Others vs. Republic (1980)KLR 59 the Court of Appeal held that:

“....recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”

[31]By relying on the testimony of PW1, the Learned Trial Magistrate was clear in his mind that the Charge in Count 1 had been proved beyond reasonable doubt; unlike Count II in respect of which, he stated thus:

"...the prosecution did not discharge the burden of proof that lie upon it. There is lack of identification by the accused persons in Count II. This shortcomings should be held in favour of the accused persons. I therefore find the 1st and 2nd accused persons not guilty and acquit them of count II for lack of evidence..."

[32]On the submissions that the Prosecution Case was riddled with contradictions, it is noteworthy that the disputation was over which weapon was carried by either Appellant. For instance, the 1st Appellant pointed out that whereas PW1alleged that he was armed with a panga, his brother, PW2, told the lower court he saw him with a club. An issue was also raised as to whether the source of light was a torch or moonlight, granted the different versions given by PW1 and PW2. It is noteworthy however that PW2met the assailants after they had wounded PW1 and taken away his mobile phone which he was using as a torch. Clearly therefore, their perspectives of the incident have to be understood from the realities then prevailing at the different points in time in respect of which they testified. It is for this reason that Ifind no merit in the Appellant's arguments; bearing in mind the holding by the Court of Appeal in Joseph Maina Mwangi –Vs- Republic Criminal Appeal No. 73 of 1992, that:

“An appellate court in considering those discrepancies must be guided by the wording of section 382 Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence”.

[33] Similarly, in Philip Nzaka Watu vs. R [2016] eKLR the Court of Appeal held that:

“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

[34] It is my finding, therefore, that the evidence presented before the lower court by the Prosecution was sufficient prove, and did prove, the elements of Count I against the Appellants beyond reasonable doubt; and that the Learned Trial Magistrate cannot be faulted for coming to that conclusion. I similarly find no quarrel with the sentence meted by the trial court granted the nature and extent of the injuries that PW1sustained.

[35] The foregoing notwithstanding, the Appellants did raise several technical arguments in their written submissions which require consideration as they are weighty enough to vitiate their conviction if proved true. These were:

[a] That the amendment of the Charge Sheet before the lower court was not validly done;

[b] That Section 200 of the Criminal Procedure Code was not complied with;

[c] That essential witnesses were not called by the Prosecution to testify;

[d] That his alibidefence was not considered by the lower court;

[d] That he was detained for more than 24 hours, in contravention of Article 49 of the Constitution.

[a] On the amendment of the Charge and consolidation:

[36] Section 214 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya recognizes that at any stage of a trial, the court may allow an application for alteration of Charge by way amendment, or substitution of the Charge Sheet or by addition of a new Charge, if deemed necessary, so long as this is done before the close of the Prosecution Case. There appears to be no dispute that, initially, the two Appellants were separately charged and arraigned before the lower court. Thus, the record of the lower court confirms that the 1st Appellant was charged on 4 January 2011 vide Criminal Case No. 35 of 2011 with burglary and stealing contrary to Section 304(2) and 279(b) of the Penal Code and assault in resisting arrest contrary to Section 253 of the Penal Code; and that the 2nd Appellant was charged in Criminal Case No. 870 of 2011 with two counts of robbery with violence contrary to Section 296(2) of the Penal Code; and one count of burglary and stealing contrary to Sections 304(2) and 279(b) of the Penal Code.

[37] The first indication that the Prosecution was intent on having the two cases consolidated was made on 25 February 2011. The consolidation application was ultimately made on 8 March 2011. It is noteworthy however that, although on 25 February 2011 reference was made by the Prosecuting Counsel to Criminal Case No. 6228 of 2010, the consolidation on 8 March 2011 involved Criminal Case No. 870 of 2011. It is for this reason that the 2nd Appellant submitted that the consolidation of the three cases was not only prejudicial to him, but also offended the provisions of Section 137 of the Criminal Procedure Code. He argued that since the cases involved different charges, the consolidation was prejudicial. He also complained that upon consolidation, the charges were not read back to enable him record a fresh plea thereto.

[38] Having given the matter careful attention, it is manifest that, in this instance, the application for consolidation and substitution of the Charge Sheet was made and allowed before the commencement of the Prosecution Case. It is further manifest from the charges filed before the lower court that the particulars of the two robbery with violence counts and the charge of burglary and stealing all related to the same incidents involving PW1 and PW3 before the lower court. They were therefore based on the same facts flowing from the events of the night of 16th and 17th December 2000; granted the proximity of the houses of the two complainants. In the premises, the contention by the 2nd Appellant that the charges were disparate and therefore ought not to have been presented together in the same Charge is clearly untenable. It is instructive that in Section 135(1) of the Criminal Procedure Code, it is stipulated that:

"Any offences, whether felonies or misdemeanours may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character."

[39] As to whether the Appellants' plea was taken afresh after the consolidation, it is a requirement, by dint of Section 214 of the Criminal Procedure Code, that where a charge is amended, which includes consolidation, the same should be read to the accused person and his/her response thereto by way of plea noted. In this regard, the proceedings of 8 March 2011 confirm that the consolidated charges merging Criminal Case No. 35 with Criminal Case No. 870 of 2011 were read and explained to the Appellants before their plea was taken afresh in Kiswahili language.

[40] The record of the lower court further confirms that there was a further amendment to the charges which was made on 19 August 2011 on which the impugned Judgment was premised. By that time, the two Appellants had the benefit of being represented by Counsel in the person of Mr. Okara, Advocate. No objection was raised to the Prosecution's application for leave to file an amended Charge Sheet. Again, after that application was allowed, the Learned Trial Magistrate read over the charges to the Appellants in Kiswahili language and proceeded to take their pleas afresh. It is noteworthy too, that this final Charge Sheet carried only two Counts of Robbery with Violence contrary to Section 296(2) of the Penal Code. Accordingly, the arguments of prejudice or allegations that the Learned Trial Magistrate failed to comply with the relevant provisions of the law governing amendment of charges, are clearly baseless; and I so find.

[b] That Section 200 of the Criminal Procedure Code was not complied with:

[41] A consideration of the lower court record does confirm the Appellants' contention that their trial was handled by two different magistrates. Thus, it is indubitable that Hon. T. Nzyoki, PM, who delivered the Judgment only took over the matter on 12 March 2012 upon the transfer of Hon. D. Kemei, PM, who heard the Prosecution Case. In the circumstances, it was imperative for the incoming Magistrate to comply with the provisions of Section 200 of the Criminal Procedure Code and explain to the Appellants their rights thereunder.

[42] Again, a perusal of the record of the lower court confirms that this obligation was discharged by the Learned Trial Magistrate. The record confirms that on 12 March 2012, in the presence of the Appellants and Mr. Chelule, Advocate, who was holding brief for their Advocate, Mr. Okara, the trial court complied with Section 200(3) of the Criminal Procedure Code; and that the Appellants opted to proceed from where the matter had reached. The relevant part of the proceedings is captured at pages 64-66 of the Record of Appeal. There is therefore no valid cause for the Appellants' complaint in this connection; or in connection with the ground that his right to legal representation under Article 49(1)(h) of the Constitution was violated.

[c] That essential witnesses were not called by the Prosecution to testify:

[43] In his evidence before the lower court, PW1 mentioned in cross-examination that it was his wife who screamed for help after he was cut; and that she was also the first person to come to his aid. Similarly, PW2 told the lower court that he rushed to the scene and assisted in taking PW1 to hospital. Granted the role played by PW1's wife, the Appellants took issue with the fact that she was not called as a witness. They also questioned why one Charles Sawanga, (a brother to both PW1 and PW2) and the Assistant Chief who arrested them were not called to testify; and urged the Court to draw the inference that had they been called, their evidence would have been favourable to the Defence and unfavourable to the Prosecution.

[44] It is noteworthy however that, in the case of the Assistant Chief, it was the evidence of PW6that his role was only peripheral. PW6 testified that he was the one who arrested the Appellants and that the Assistant Chief only assisted him. Similarly, the wife of PW1 merely played a supportive role. There is no indication in the lower court record that she saw, heard or recognized any of the culprits so as to say that vital evidence was omitted by reason of her failure to testify before the lower court. Likewise, there is no indication as to what role, if any, was played by Charles Sawanga. All there is is the evidence of PW2 that he woke him up and informed him of the distress call emanating from the houses of PW1 and PW4. Indeed, Section 143 of the Evidence Act, Chapter 80 of the Laws of Kenya, does provide that:

"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."

[45] Hence, in Keter vs. Republic [2007] 1 EA 135, it was held, inter alia, that:

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

[46] In the premises, the Prosecution was only obliged to avail such number of witnesses as was sufficient to establish the charge beyond reasonable doubt. This principle was restated by the Court of Appeal in the case of Daniel Muhia Gicheru vs. Republic Criminal Appeal No. 90 of 2007 (UR) thus:

“The often trodden principle of law is that the prosecution is obliged to prove its case against an accused person beyond any reasonable doubt. How many witnesses is it expected to call to satisfy that burden? In BUKENYA AND OTHERS V.UGANDA [1972] EA 349 the Court of Appeal for Eastern Africa held that the prosecution has the discretion to decide as to who are the material witnesses. That Court, however, qualified that general principle by stating that:

“…. There is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent …. While the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”

[47]As for the alleged contradictions and discrepancies in the prosecution case, the Appellant mentioned what he perceived to be contradictions as to the date the offence was reported to the Police, and whether it was on 5 October 2013 or 6 October 2013; and the OB No. and date. I did not find the said contradictions material in any way.

[d] That the alibidefence raised by the Appellants was not considered by the lower court:

[48] According to the 1st Appellant, he was asleep in his house when the alleged robbery occurred. His evidence was that no such occurrence was brought to his attention notwithstanding that his house is about 70-80 metres away from PW1's. The same defence was offered by the 2nd Appellant, who also relied on the case of Republic vs. Johnson.[1969] 3 AllER 969 for the proposition that if an accused person puts forward an alibi as an answer to the criminal charge, he does not assume the burden of proving it as the burden of proving his guilt remains on the Prosecution throughout his trial.

[49] A careful consideration of the Judgment of the lower court shows that, in its summary of the evidence at pages 76 and 77 thereof, the court gave consideration, to the Appellants' statements of defence as well as the points for determination, the decision thereon and the reasons for the decision as is required by Section 169(1) of the Criminal Procedure Code. The Judgment further confirms that one of the reasons why the two Appellants were acquitted of Count 2 was that PW3 was unable to identify them. It is manifest therefore, their defence was taken into consideration, granted the observation of the Learned Trial Magistrate that:

"...PW1 John Ndunde Sewanga previously knew the three robbers and cannot be said to be under extreme fright as not to be able to observe the attackers well. In the circumstances of this case I am satisfied that the 1st accused and 2nd accused persons were correctly identified by PW1. The evidence of PW1 John Ndunde Sewanga on the issue of identification of the 1st accused and the 2nd accused on the scene of the robbery at his house sufficiently rebuts the alibi raised by the two accuse persons ...at the scene of robbery in count I on the material night. The evidence of the 1st accused that the charge is fabricated against him lacks basis in view of the concise account as detailed evidence by PW1 against not only the 1st accused but the 2nd accused and the other accomplice now at large..."

[50] Accordingly, the Appellants' submission that their defence was not taken into account is manifestly devoid of merit.

[d] On the alleged violation of the Appellants' right not to be detained for more than 24 hours:

[51] Lastly, the 2nd Appellant submitted that his constitutional right to be presented to court within 24 hours was violated by the Prosecution; and that by reason of this violation, his ensuing trial was a nullity. He relied on Articles 2(5), 2(6) 25, 49(1)(h) and 50(2) of the Constitution. He submitted that whereas he was arrested on 26 December 2010, he was not taken to court for plea until 8 March 2011; and that no reason was given by the Prosecution for the delay. Indeed, the Charge Sheet filed in Criminal Case No. 870 of 2011 against the 2nd Appellant confirms the 26 December 2010 as the date of his arrest; and while it gives the date of 4 January 2011 as the date when his apprehension report was made to court, the proceedings in that case show that his first court appearance was on 8 March 2011, when his plea was taken. That was the same date when Criminal Case No. 870 of 2011 was withdrawn and the case against the 2nd Appellant consolidated with the 1st Appellant's case in Criminal Case No. 35 of 2011.

[52] It is therefore true that the 2nd Appellant was taken to Court several days after his arrest; and that no explanation was offered by the Prosecution for this delay before his plea was taken in Criminal Case No. 870 of 2011. In the same vein, no explanation was proffered in Criminal Case No. 35 of 2011 why the Appellants' arraignment came after the 24 hour period prescribed in Article 49(1)(f)of the Constitution. Consequently, it is plain that their constitutional right to be taken to court as soon within 24 hours was violated. It cannot however be said that that violation serves to invalidate the entire proceedings of the lower court in Criminal Case No. 35 of 2011;granted that they are at liberty to seek redress in that regard.(see Albanus Mwasia Mutua v Republic [2006] eKLR and Evans Wamalwa Simiyu v Republic [2016] eKLR). On this basis, I do not consider the issue fatal to the prosecution case.

[53] In the result, I find no merit in the appeal and would accordingly dismiss it.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 15TH DAY OF MAY, 2019

OLGA SEWE

JUDGE