[2023] KEHC 26288 (KLR)

Nyabaru v Republic (Criminal Appeal E006 of 2022) [2023] KEHC 26288 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26288 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E006 of 2022

KW Kiarie, J

December 8, 2023

Between

Victor Nyariki Nyabaru

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case NO. E1285 of 2021 of the Chief Magistrate’s Court at Kisii by Hon. P.K. Mutai–Senior Resident Magistrate)

Judgment

1. Victor Nyariki Nyabaru, the appellant herein, was convicted after pleading guilty to the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code.

2. The particulars of the offence are that on the 12th day of June 2021at the Riamasagara area, Bogiakumu location in Kisii South sub-County within Kisii County, robbed Alfayo Kombo Kenyoru of his wallet, hand watch, Tecno mobile phone, camera, laptop and a laptop bag all valued at Kshs. 165,200/= and immediately before and after the time of the said robbery, wounded the said Alfayo Kombo Kenyoru.

3. The appellant was sentenced to death. He was aggrieved and filed this appeal against both conviction and sentence. He raised grounds of appeal as follows:a.The trial magistrate erred in law and fact by failing to consider the evidence produced by the accused.b.The trial magistrate erred in law and facts by failing to establish if indeed it was the accused who attacked the complainant.c.The trial court erred in law and facts by relying on the evidence of PW2 that was never supported by any employment details.d.The trial court erred in law and fact by convicting the accused by relying on the prosecution’s evidence of mistaken identity.e.The trial magistrate wrongly evaluated the evidence which resulted in the wrongful conviction of the accused to death sentence which is unconstitutional.

4. The appeal was opposed by the state through Mr Justus Ochengo. Learned counsel. His grounds were as follows:a.That the appellant was positively identified;b.That the prosecution proved its case to the required standards; andc.That the death penalty is legal.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

6. When the complainant herein arrived in Kisii from Nairobi, his evidence was that he approached a boda-boda rider with whom he negotiated to take him to Suneka Iterio. On the way, the rider told him that he was running out of fuel and they went around until they got a place to fuel. They proceeded on their journey and on reaching Mosando Primary School he slowed down and claimed he had run out of fuel. He became suspicious and disembarked. When he started walking away, the rider pursued him. When he caught up with him, he stabbed him and a struggle ensued. The rider demanded for Kshs.2,000/=. The rider stabbed him in the chest but his employment badge dulled the blow and minimized the penetration. Luckily, he saw a motor vehicle approaching and he cried for help. The rider whom he said was the appellant ran away.

7. Nyaata Alfayo Mosota (PW7), a clinical officer, examined the complainant he had minor cuts and tenderness.

8. George Kengere Oroo (PW6) testified that he was driving his brother to the hospital when they found a person crying for help. His attacker escaped and abandoned a motorcycle he had. The victim had injuries and his pair of trousers was torn. They took the victim and the motorcycle to the police. The motorcycle from the typed proceedings, is indicated as KMDL 763J. When I checked the handwritten proceedings, the handwriting was not very legible and the same appeared as KMFL or KMDL.

9. The owner of motorcycle KMFL 763J is Silvanus Mabeche Kengere (PW2). His evidence was that on June 16th 2021, he was called to the police to identify the appellant. He found his motorcycle in police custody. His evidence was that the appellant was his rider who had gone missing for some days. He had not received money from the appellant for three days and the motorcycle had not been taken to him for overnight safe custody for several days as was the custom.

10. There was no doubt therefore that the attacker of the complainant was the appellant. The conviction was based on facts.

11. Was the appellant sentenced to a legal sentence? Section 295 of the Penal Code provides: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.Section 296 (2) on the other hand 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 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.

12. In Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, the Court of Appeal stated as follows:We reiterate what has been stated by this Court in various cases before us: the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides 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 steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge.

13. The Court of Appeal in the case of Paul Katana Njuguna v Republic [2016] eKLR the test when an accused is convicted in a charge that is duplex such as is the case here, is whether any prejudice was suffered. The Court said:In the matter before us, we are unable to detect any prejudice which the appellant suffered. The record shows that the appellant suffered no confusion when the charge, as framed, was read to him and when the witnesses testified, he fully cross-examined them. He raised no complaint before both the trial court and before the High Court. So, while it would be undesirable to charge an accused person under both sections in the alternative, it would not be prejudicial to that accused person if the offences are not framed in the alternative. As we have already noted the rule against duplicity is to enable an accused know the case has to meet. We accept as the correct position in law that uncertainty in the mind of the accused is the vice at which the rule against duplicity is aimed. If there is no risk of confusion in the mind of the accused as to the charge framed and evidence presented, a charge which may be duplex will not be found to be fatally defective.41. In this appeal, the appellant was fully aware of the case he was to meet when he was charged before the trial court and the charge as framed did not lead to a failure of justice. We must, therefore, reject the appellant's belated complaint that the alleged duplicity in count one of the charges caused him prejudice. We find that the defect if any, was in any event, curable under Section 382 of the Criminal Procedure Code.

14. In the instant case I find that the appellant understood the charge and all the essential ingredients thereof. He did not suffer any prejudice. The defect is curable under section 382 of the Criminal Procedure Code.

15. The upshot of the foregoing is that the appeal lacks merit. I accordingly dismiss it.

DELIVERED AND SIGNED AT KISII THIS 8TH DAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE