[2018] KEHC 4235 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO 63A OF 2017

NICHOLAS MUIA MUTUKU alias NIKO alias BLACKIE..........APPELLANT

VERSUS

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

(From original conviction and sentence in Criminal Case Number 5000 of 2009 in the Chief Magistrate’s Court at Thika delivered by Hon L. Gicheha (PM) on 2nd June 2010)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Nicholas Muia Mutuku alias Niko alias Blackie was jointly charged with Patrick Mbithi Nthenge (hereinafter referred to as “his Co-Accused person”) with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code Cap 63 (Laws of Kenya).

2. The particulars of the charge were that on the 20th day of October 2009 at Harare bar in Thika District within Central province jointly with another not before court, while armed with a rifle and other crude weapons, they robbed Bethwell Chege Kiragu(hereinafter referred to as PW 1”) of cash Kshs 27,000/=, mobile phone make Nokia 3110C, a radio make Sony Megabass, an amplifier, a DVD make Diamond, a mobile phone make Nokia 1100 and Safaricom scratch cards all valued at Kshs 89,500/= and immediately after the time of robbery wounded the said PW 1.

3. The Learned Trial Magistrate, Hon L. Gicheha, Principal Magistrate convicted both the Appellant and his Co-Accused person for the offence of robbery with violence and imposed on them, the death sentence as is prescribed under the law.

4. Being dissatisfied with the said judgment, on 10th June 2010, the Appellant filed a Petition of Appeal. He relied on four (4) Grounds of Appeal. On 21st March 2018, he filed fresh Grounds of Appeal and Written Submissions. This time he relied on nine (9) Grounds of Appeal.

5. When the matter came up for hearing on the said 21st March 2018, the State orally submitted in court whereupon this court reserved its judgment.

LEGAL ANALYSIS

6. As this is a first appeal, this court analysed and re-evaluated the evidence afresh in line with the holding in the case of ­Odhiambo vs Republic Cr App No 280 of 2004 (2005) 1 KLRwhere the Court of Appeal held that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanor”.

7. Having considered the Appellant’s and States’ Written Submissions, it appeared to this court that the only issue that had been placed before it for determination was whether or not the Prosecution proved its case against the Appellant, beyond reasonable doubt.

8. The Appellant’s case was hinged on his identification. He applied for and obtained the First Report at the appellate stage. He relied on several cases to justify why a First Report was necessary- See Akumu vs Republic [1954] 21 EACA, Kabar Singh Beraj vs Republic [1913] 20 EACA 137amongst other cases.

9. He submitted that he was not properly identified as a grey/black jumper that was allegedly found in his room was not corroborative evidence of his identification. His argument was that since the incident herein was said to have occurred at 10. 30 am and the attackers were said to have been armed with a gun, conditions for positive identification were difficult. He pointed out that evidence of visual identification should be approached with caution as was held in the cases of Waithaka Chege vs Republic [1979] KLR 271, Gikonyo Karume & Another vs Republic [1990] KLR 23 amongst other cases he also placed reliance upon.

10. He further submitted that although PW 1 and Milka Wamaitha Muriuki (hereinafter referred to as “PW 3”) may have been honest witnesses, there could have been a possibility of a mistake in their identification evidence. He was categorical that the court erred in convicting him based on dock identification because they did not give the description of their attackers at the time of recording of the First Report.

11. He pointed out that although PW 1 had testified in court that he was able to identify him and his Co-Accused person, in the First Report, he had indicated that he had only identified one (1) person, whom he did not give a description of. It was his submission that because PW 1 gave two (2) different accounts of what took place, he had lied to the court. He placed reliance on the case of Cr Appeal No 589 of 2001 Thomas Oluoch Okumu vs Republic where Etyang J (as he then was) found a witness who had given two (2) different accounts of what had transpired to have lied to the court.

12. He further stated that he was not caught with any stolen item. He added that PW 1, Mary Syombua (hereinafter referred to as “PW 2”) and PW 3 did not lead to his arrest and the security officers who arrested him were never called as witnesses. It was his contention that the Trial Court failed to take his evidence to the effect that he had disagreements with the security officers and that is why they framed him with the present offence.

13. It was his averment that the only answer the witnesses could have given when asked by the police officers whether they were the attackers on the material night was in the affirmative, which he submitted was not proper identification that could have led to his conviction.

14. He relied on the cases of Austria vs Italy [1963] 6 year book 740 @ p 784, Bater vs Bater 1950 All ER 458 & 459 amongst other cases on the question of identification and pointed out that because there was a possibility of a mistake in his identification, the doubt lent this court in resolving the case in his favour. It was therefore his submission that his Appeal ought to be allowed as the Prosecution failed to prove its case against him, beyond reasonable doubt.

15. On its part, the State was categorical that the issue of a mistake regarding the Appellant’s identification could not have arisen herein because his identification was through recognition as he was a regular customer in PW 1’s Harare Bar. It pointed out that there was sufficient light for PW 1 to have positively identified him. It therefore urged this court to dismiss the Appeal herein.

16. According to PW 1, on the material date and time, he was at his Harare Bar when the Appellant, his Co-Accused person and another person stormed into the Bar and ordered everyone to lie down. At the time, one of the attackers was armed with an AK 47 rifle. He stated that the attackers hit him with a bottle while demanding for money, which he gave them. The attackers stole a DVD, Amplifier and Radio during the robbery. He identified the Appellant herein as “Blackie” and the sweater he was wearing at the material time and his Co-Accused who he referred to as “Junior”. He said that he did not know their real names. He was emphatic that it was the Appellant herein who hit him with a bottle whereafter he gave him money. He was categorical that he knew the Appellant herein physically as he was his customer, which recognition subsequently led to his arrest and that of his Co-Accused person.

17. PW 2 testified that on the material date and time she was at home when she saw the Appellant’s Co-Accused who she knew as “Junior” and others climb a Motor Cycle carrying a radio cassette. She started screaming. Just then PW 1, who was bleeding, came out of the Bar accompanied by PW 3. She informed them that she had seen the Appellant’s Co-Accused coming out from the Bar. Upon being informed of his arrest, she went to Makongeni Police Station where she identified the Appellant’s Co-Accused.

18. On being cross-examined, she was emphatic that she knew the Appellant’s Co-Accused as “Junior” or “Mbici” and that she had known him since 2006. She was categorical that the Appellant’s Co-Accused was the one who was carrying the radio cassette and boarded the Motor Cycle last. It was her evidence that she was able to see him because there were security lights. She said that she did not recognise his accomplices.

19. PW 3 said that on the material date and time there was electricity she said that attackers came and ordered them to lie down, which they all did. Her evidence was that the Appellant herein was the one who carrying a gun. She said that he slapped her, took her to the Counter from where he took money, Kencell and Safaricom cards and two (2) radios. After the alarm at the counter rang, she said she saw one of the attackers hit PW 1 with a bottle. She stated that she saw the Appellant for the first time during the robbery and identified him when he was arrested.

20. No 79296 PC Stanley Muiruri (hereinafter referred to as “PW 4”) testified that he went to the Bar on being informed of the robbery. He interrogated the patrons on what had transpired. They recorded details in the Occurrence Book (OB). The Appellant and his Co-Accused person were arrested on 29th October 2009 by security officers. They re-arrested them and took them to the police station. He stated that one of the workers at the Bar identified the Appellant’s Co-Accused as “Mbici” and stated that the sweater the Appellant was wearing on the material time was found at the Appellant’s house.

21. No 67860 PC Timothy Sereney (hereinafter referred to as “PW 5”), was the Investigating Officer. He tendered in evidence the sweater the Appellant had worn on the material night. The Appellant’s Co- Accused did not cross-examine him.

22. In his unsworn evidence, the Appellant stated that on 29th October 2009, he met with his Co-Accused at Paradise Bar. They drank beer and as they were leaving to go home, someone asked them why they were making noise. He said that four (4) people came and started beating them. They were then led to a security office where security officers told them that they were drunkards who had insulted them and demanded an apology and tea. He said that they asked for forgiveness. Police officers were called and they were taken to the police station. He stated that they were taken to their houses the following morning where their houses were searched but that the search yielded nothing. He denied ever having committed the offence herein. His evidence was corroborated by his Co-Accused person.

23. A careful perusal of the evidence that was adduced by the Appellant and his Co-Accused showed that both of them were together on 29th October 2009 when they were allegedly arrested by security officers. They both corroborated each other’s evidence. Notably, both the Appellant and his Co-Accused did not adduce any evidence in respect of the night of the attack on 20th October 2009. Consequently, in the absence of any defence of alibi on the night of 20th October 2009, the evidence that was tendered by the Prosecution witnesses remained unrebutted and/or uncontroverted.

24. As the state rightly submitted, there was no possibility of there having been a mistaken identity of the Appellant herein. Although PW 2 did not see the Appellant herein and PW 3 said that she identified him when he was arrested on 29th October 2009, PW 1 was emphatic that he saw the Appellant clearly as he was the one who hit him with a bottle and he was a customer at his Bar. He was able to identify the sweater he was wearing on the material date of the attack.

25. It was clear that the First Report OB 37/20/10/2009 that the Appellant relied upon while submitting in the appellate stage showed that PW 1 stated that one of the attackers was physically known to him. In the First Report No OB 38/20/10/2009, PW 2 said that she identified the Appellant’s Co-Accused person and actually gave his name as “Mbithi” alias “Junior”.

26. Notably, all of the Prosecution witnesses were categorical that the scene of the robbery was properly lit and were therefore able to recognise their attackers. An Identification Parade was not necessary as PW 1, identified the Appellant herein by recognition. He also identified him at the dock. It was irrespective that no stolen item was recovered in the Appellant’s or his Co-Accused person’s house, after searches were conducted in both houses.

27. It was also immaterial that the security officers who arrested the Appellant and his Co-Accused were not called as witnesses in this case. Indeed, under Section 143 of the Evidence Act Cap 80 (Laws of Kenya), the prosecution has the discretion to decide the number of witnesses to prove a fact. The fact that PW 1, PW 2 and PW 3 positively identified the Appellant and his Co-Accused rendered calling the security officers as witnesses inconsequential and was not fatal to the Prosecution’s case.

28. Having analysed the evidence that was adduced by the Prosecution witnesses vis- a- vis the Appellant’s unsworn evidence, this court came to the firm conclusion that the Appellant was positively identified as having been one of the attackers on the material date and time and that the Learned Trial Magistrate correctly convicted him of having committed the offence herein. This court found the Prosecution witnesses to have been truthful and their evidence was cogent, consistent and did not contradict each other.

29. Under Section 296 (2) of the Penal Code, the ingredients of the offence of robbery with violence are that:-

a. the offender must be armed with any dangerous or offensive weapon or instrument; or

b. the offender must be in the company of one or more other person or persons or;

c. 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.

30. In this particular case, all the ingredients of the offence of robbery with violence were present. The Appellant was in the company of other person, he was armed with a gun and he hit PW 1 with a bottle and slapped PW 3. Although there was no documentary evidence that was adduced to prove the injuries that were sustained by PW 1, PW 1’s and PW 3’s evidence that the Appellant and his Co-Accused person used personal violence on them by hitting PW 1 with a bottle, slapping him and slapping PW 3 constituted the ingredients of the offence of robbery with violence under Section 296(2) of the Penal Code.

31. It is important to point out that as the use of the word “or” in Section 296(2) of the Penal Code is disjunctive and not conjunctive, any of the three (3) ingredients is sufficient to sustain a conviction of the offence of robbery with violence. Taking the circumstances of the case herein, this court therefore came to the firm conclusion that the Prosecution proved its case to the required standard, the standard for criminal case being, proof beyond reasonable doubt.

DISPOSITION

32. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal that was lodged on 10th June 2010 was not merited and the same is hereby dismissed. Instead, this court hereby affirms the conviction as the same was lawful and fitting.

33. However, in view of the holding in the recent case of Petition No 15 of 2015 Francis Muruatetu & Another vs Republic where the Supreme Court that found that the mandatory sentence under Section 296 (2) of the Penal Code was unconstitutional, this court hereby directs that this matter be referred back to the Chief Magistrates Court at Thika Law Courts for re-sentencing, if need be. This matter shall be placed before the Chief Magistrate of Thika Law Courts on 10th August 2018 for his and/or her further orders and/or directions.

34. It is so ordered.

DATED at NAIROBI this 28th day of July 2018

J. KAMAU

JUDGE

READ, DELIVEREDand SIGNED at KIAMBU this 30thday ofJuly2018

C.MEOLI

JUDGE