[2017] KEHC 1849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 15 OF 2016

[From the original conviction and sentence in Criminal Case No. 889 of 2016 in the Chief Magistrate’s Court at Narok, R. v. Nkuyata Ole Nkaiyiaka]

NKUYATA OLE NKAIYIAKA ………………………………APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of death in respect of robbery with violence contrary to section 296 (2) of the Penal Code (Cap 63) Laws of Kenya.

2. The state has supported both the conviction and sentence of the appellant.

3. The appellant was convicted on the direct evidence of the 2 complainants (PW1 and PW 2).

4. The sworn defence evidence of the appellant was that he was arrested from his house on 20/5/2014 by a police officer called Akoth. It is this police officer who took his photographs and sent them to the complainant to enable them identified him. He testified that he used to buy and sell sheep and that the police officer (Akoth) was not called to testify. In short, his defence was that he was framed by Akoth.

5. The appellant has raised 11 grounds in his petition of appeal to this court. In ground 1, he has stated the unchallengeable fact that he did not plead guilty to the offence.

6. In grounds 2 and 3, the appellant in a condensed form has faulted the trial court both in law and fact in failing to find that the prosecution evidence was contradictory and inconsistent and therefore incredible. Additionally, he has stated that that evidence was not water tight to justify a conviction. In this regard, the evidence of PW 1 was that she was in her house with her husband, Samuel Mogeni (PW 2) on 2/11/2013 at Total Estate in Narok town. While in the house, she saw 2 people running towards them and there were others who followed those people. As a result, she screamed and before she could do it again, those 2 people told her: “piga nduru uone.”As a result she did not scream.

7. They entered the house and she saw one of them had a G-3 gun and one of them was in police uniform. The other robbers were armed with rungus and sticks. They were made to lie down in the sitting room. In the process the robbers took their items namely 1 camera, a T.V set and a mobile phone, amongst other items. It was also her evidence that the robbers stayed in their house from 7. 30 pm to 11. 00 pm. During that time, they made tea and ate chapatis. The robbers in addition took their clothes. Furthermore, it was her evidence that there were electricity lights outside their house. It was also her evidence that as they were going outside, the robbers warned them not to report stating that they were police officers. In the end, they made a report to the police.

8. The following day at 10. 00 am, PW 1 saw one of the robbers opposite Cereals Board area. She then called DCIO. As a result, this man was arrested and convicted apparently in another case.

9. On 29/5/2014, she was called to a police identification parade, which was conducted by Chief Inspector John Manyara (PW 4). In that parade, she identified the appellant. She testified that it was this appellant who made tea in her house. She also testified that it was this appellant who served his co-accomplices with chapatis. It is this same appellant who ran-sack her house. Finally, she testified that the appellant and his co-accomplices were in the house for 3 hours.

10. Thereafter the complainant went for treatment and was examined and treated by Edwin Kiprotich whose report was put in evidence as exhibit 1. Hillary Kiptoo (PW 3 ) merely put in the P3 form that was completed by Edwin Kiprotich which was put in evidence as exhibit P2A. Her treatment notes were put in evidence as P2B.

11. Similarly, her husband was also examined and treated at the same hospital by Edwin Kiprotich. Edwin Kiprotich found that her husband had injuries on the chest, both hands and at the back. The P3 form was put in evidence as exhibit 1a and the treatment notes were put in evidence as exhibit 1b.

12. The 2 witnesses PW 1 and PW 2 identified the appellant at the police identification parade which was conducted by Chief Inspector John Manyara (PW 4).

13. In the circumstances, I find that the appellant was in the house of the complainant for 3 hours. They had enough time to observe him. It is this appellant who prepared tea and served his co-accomplices with chapatis. The appellant was in close proximity with the complainant. The complainant easily picked him at police identification parade. In the circumstances, I find that PW 1 and PW 2 positively identified the appellant as one of their robbers. I find their evidence to be cogent and consistent. And for that reason, I find no merit in the submission of the appellant that this evidence was contradictory and unreliable. In the circumstances, I find no merit in grounds 3 and 4 which I hereby dismiss.

14. In grounds 5 and 6, the appellant in condensed form has faulted the trial court for failing to find that the case against him was fabricated. Additionally, he has also complained that his defence was not considered as required by law. In this regard, I find that the appellant was positively identified as one of the robbers by PW 1 and PW 2. He was also identified at the police identification parade. In view of this, I find that his defence that the evidence against him was fabricated is without merit and is hereby dismissed.

15. In ground 9, the appellant has faulted the trial court both in law and fact by delivering a judgement that was full of misdirections and errors, which resulted in a miscarriage of justice. I have considered the judgement of the trial court and I have found that the judgement was well considered and that that court applied the correct principles in writing the judgement. I therefore find no merit in this ground of appeal and hereby dismiss it.

16. In ground 10, the appellant has faulted the trial court for failing to accord him a fair trial. The appellant has cited Article 14(1) and 15 of the International Covenant for Civil and Political Rights (ICCPR). It is Article 50 of the 2010 Constitution of Kenya which accords an accused person fair trial rights. In this regard, I find from the record of proceedings that the appellant was accorded the opportunity to cross-examine the prosecution witnesses and he did so. He was also accorded the opportunity to give evidence in his defence. He elected to give sworn evidence. He also told the court that he had no witnesses to call. In the circumstances, I find that the appellant was fully accorded his fair trial rights as required by the constitution. I therefore find no merit in this ground of appeal and it is hereby dismissed.

17. In grounds 4 and 11, the appellant has faulted the trial court for failing to comply with articles 25(a) and 29 (d)(e)(f) of the 2010 Constitution of Kenya. Article 25 (a) guarantees a person freedom from torture, in human or degrading treatment or punishment. Article 29 (d) (e)(f) of the constitution guarantees freedom and security of every person freedom from any form of torture, freedom from corporal punishment in a cruel, inhuman or degrading manner. In this regard, I find that the sentence of death imposed upon the appellant is one that is authorized by law namely the Penal Code in section 296 (2) of that act. I further find that the constitution in the provisions of Article 26 (3) which are in relation to the right to life allow the taking of life to the extent authorized by the constitution or other written law. In this regard, the provisions of section 296 (2) of the Penal Code are part of the written law that permit the imposition of the death penalty. In the circumstances, I find no merit in grounds 4 and 11 and are hereby dismissed.

18. This is a first appeal. As a first appeal court according to Okeno v. R (1972) EA 32, I am required to re-assess the entire evidence upon which the appellant was convicted and sentenced. I have done so and I find that the appellant was convicted on ample evidence.

19. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 14th day of November, 2017

in the presence of the appellant and Mr. Mukofu for respondent.

J. M. Bwonwonga

Judge

14/11/2017