[2023] KEHC 26289 (KLR)

Nyabuto & 2 others v Republic (Criminal Appeal E014 of 2023) [2023] KEHC 26289 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26289 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E014 of 2023

KW Kiarie, J

December 8, 2023

Between

Douglas Mose Nyabuto

1st Appellant

Lawrence Onyiego Mokaya

2nd Appellant

Evans Arisi Moturi

3rd Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case NO.686 of 2020 of the Chief Magistrate’s Court at Kisii by Hon. P.K. Mutai–Senior Resident Magistrate)

Judgment

1. Douglas Mose Nyabuto, Lawrence Onyiego Mokaya, and Evans Arisi Moturi, the appellants herein, were convicted after pleading guilty to the offence of robbery with violence contrary to section 296 (2) of the Penal Code.

2. The particulars of the offence are that on the 15th day of April 2020 at Mokusi village, in Kitutu Central sub-County within Kisii County, jointly with others not before the court, while armed with a homemade gun, machete, hammer, and clubs robbed Lawrence Ooga Omwanza of motor vehicle registration number KBA 148P, cash Kshs. 165,000/=, LG television set, HP laptop, assorted clothes, Samsung mobile phone, and gas cylinder all valued at Kshs. 769,500/= and immediately before the time of the said robbery used actual violence to the said Lawrence Ooga Omwanza.

3. The appellants were sentenced to suffer death. They were aggrieved and filed this appeal against both conviction and sentence. They raised grounds of appeal as follows:a.That the learned trial magistrate faulted both in law and facts when seemingly based the conviction on purported allegation yet the same was extremely doubtful.b.That the trial learned magistrate further faulted in law and order when maliciously based the conviction on the purposed allegation of identification by recognition and failed to consider that the evidence in the first report did not describe the attackers to the reports made at the police station.c.That the trial learned magistrate faulted both in law and facts when miserably misdirected in his decision by appreciating and basing the conviction on purported evidence of recognition yet the same was precarious given that the evidence the court relied on was of a single witness.d.That the trial learned magistrate faulted both in law and facts when seemingly ignored and overlooked the appellant’s defence without cogent reasons yet the same was remarkably comprehensive in casting doubts to the strength of the prosecution case.e.That the learned trial erred in law and fact when failed to note that no investigations were carried out but the prosecution and failed in law by not analyzing the whole prosecution evidence as adduced thus occasioning a miscarriage of justice.f.That the learned trial magistrate erred in law and fact by basing his conviction on evidence that was insufficient that could not have supported the conviction based among the appellants while the evidence in support of the same was not watertight and could not be used as a basis for a safe conviction.g.That my Lord the learned trial magistrate erred in law and fact when failed to note that the investigating officer had taken the appellants’ photos casting doubts in the instant case since the photos were shown to the complainant herein before the identification parade was conducted.h.That the learned trial magistrate erred in law and fact when failed to note that no investigations were carried out but the prosecution and failed in law by not analyzing the whole prosecution evidence as adduced thus occasioning a miscarriage of justice.

4. The state opposed the appeal through Mr. Brian P. Ayodo, learned counsel. He said the prosecution proved their case to the required standards.

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 conclusion 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 robbers struck the home of Lawrence Ooga Omwanza, it was at about 8 p.m. His wife who had gone out returned to the house running. She said the police were outside. Suddenly, six men entered the sitting room and switched off all the lights including the TV set. We gather this from the evidence of Lawrence Ooga Omwanza PW1 and his wife Divinah Osoro (PW3). The subsequent transactions were conducted in darkness. Divinah (PW3) did not testify to have identified any of the robbers. Her husband, however, said he identified the second appellant before they switched off the lights and the 1st appellant for he was his co-driver when he took over driving the vehicle from the gang.

7. When circumstances are not favorable for an identification, Lord Widgery CJ in R. vs. Turnbull and Others [ 1976] 3 All ER 549 issued the following caution:Secondly, 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 the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? 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?…Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

8. It must be appreciated that from the narration of the events by these two key witnesses, PW1 couldn’t be able to see a stranger and be able to recognize him later. The only time this may be possible is when there is a special conspicuous feature on the body of the stranger. There was no evidence to that effect.

9. When PW1 says he recognized the 1st appellant in the vehicle, again there is no sufficient evidence to conclude that he, indeed, did so.

10. There was no evidence of identification at the home and in the car to base the conviction on.

11. An identification parade is conducted to ensure that the witness who claims that he/she can be able to identify a culprit does so, to eliminate erroneously implicating a person who may not have been involved. The Court of Appeal in Ajode vs. Republic [Gicheru CJ, O’Kubasu JA& Onyango Otieno AG.JA KLR [2004] 2 KLR 81, 86 observed that:It is also trite law that before such a parade is conducted, and for it to be properly conducted, a witness should be asked to give the description of the accused and the police should then arrange a fair identification parade (see case of Gabriel Kamau Njoroge V Republic (1928-88) 1 KAR 1134).In this case, it was not necessary to conduct an identification parade for none of the witnesses had described their attackers. The parade had no probative value.

12. One of the items that was stolen from the complainant in the robbery was his Samsung Galaxy phone IMEI No. 35171316525174/2. The evidence of CPL. Gideon Koech (PW7) was that it was recovered from Lawrence Onyiego, the second appellant. This was on 4th May 2020. In his defence, the second appellant contended that the phone was recovered from a guy he was with. Towards the end of his evidence, he changed and said the phone that was allegedly stolen was given to him by his girlfriend.

13. This was an apt case to invoke the doctrine of recent possession. In the case of Malinga vs. R [1989] KLR 225 Bosire, J (as he then was) expressedhimself thus on page 227:By the application of the doctrine, the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of the fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver.I therefore find that the trial magistrate was justified in rejecting his defence.

14. The third appellant was linked to the offence of robbery by a handset. At the time of the robbery, the complainant was forced to send some money to phone number 0746977961 and the name of the recipient was Rebecca Muthoni Mwangi. On the 16th day of April 2020, James Sagwe Thomas (PW6) a boda-boda rider was assigned the duty of ferrying seats by a client he knew as Ekemota. He identified him as the 3rd appellant. He (the 3rd appellant) sent him Kshs.2,500 for the purchase and Kshs.1000/= as his payment for the transport of the seats. When the name of the sender appeared as Rebecca Muthoni Mwangi, he called his client and informed him about it. He told him not to bother about it. Later after two weeks he was arrested by the police and asked about the transaction. The 3rd appellant did not address this incriminating evidence. It, therefore, went unchallenged.

15. The evidence of the transaction with the phone number 0746977961 confirmed beyond any reasonable doubt that the 3rd appellant was involved in the robbery of the complainant. The finding of the learned trial court cannot be faulted.

16. The evidence against Douglas Mose Nyabuto (1st appellant) was evidence of suspicion. The Court of Appeal in the case of Sawe vs. Republic [2003] KLR 354, held as follows:Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

17. I, therefore, find that there was no sufficient evidence to convict him. The conviction is quashed and the sentence is set aside. Douglas Mose Nyabuto is set at liberty unless if otherwise lawfully held.

18. The appeal by Lawrence Onyiego Mokaya and Evans Arisi Moturi is dismissed.

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