[2022] KEHC 11562 (KLR)

Nyakundi & another v Republic (Criminal Appeal 263/264 of 2019) [2022] KEHC 11562 (KLR) (Crim) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11562 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 263/264 of 2019

DO Ogembo, J

May 17, 2022

Between

Wycliffe Omangi Nyakundi

1st Appellant

Benson Macharia Wamaitha

2nd Appellant

and

Republic

Respondent

(Being an appeal Arising from the Judgment, conviction and sentence of the Hon. Senior Principal Magistrate, Hon. Boke – SPM, dated 8. 11. 2019, in Kibera Chief Magistrate’s court criminal case No. 2367 of 2016)

Judgment

1. The 2 appellants Wycliff Omangi Nyakundi and Benson Macharia Wamaitha, were charged before the lower court with 1 count of Abduction contrary to section 256 as read with section 258 of the Penal code. The particulars of the charge were that on May 25, 2016 at Capricon Grand Restaurant behind Nakumatt Prestige along Ngong Road in Nairobi County, they jointly forcefully compelled one Buregeya Athanaze from Capricon Grand Restaurant to Ngong Forest in order to put him in a danger of being murdered.

2. Upon the conclusion of the case, the appellants were convicted of the offence charged and sentenced each to pay a fine of Ksh 1million or in default to serve 1-year imprisonment. They were sentenced on November 8, 2019.

3. Being aggrieved of the conviction and sentence, the appellants filed separate appeals on the same date on December 16, 2019. The 2 petitions of appeal filed by the appellants are similar in every details. They raised up-to 8 grounds of appeal as follows:-1. That the learned trial magistrate erred in law and fact in convicting the appellants against the weight of evidence and gave no weight by disregarding the evidence of the appellants2. That the learned magistrate erred in law and in when the evidence adduced could not sustain a conviction3. That the learned trial magistrate erred in law and fact by convicting the appellants yet the complainant’s evidence did not support the charges against the appellants.4. That the learned magistrate erred in law and fact in failing to find that the prosecution did not prove their case beyond any reasonable doubt.5. That the learned magistrate erred in law by denying the appellants the right to a benefit of doubt.6. That the learned magistrate erred in law and fact in failing to find that there were reasonable doubts in the evidence tendered by the prosecution which doubts ought to have been resolved in favour of the appellants.7. That the learned magistrate erred in law and fact in giving superficial or no consideration to the evidence tendered and disproportionate weight and significance to the evidence tendered by the prosecution contrary to law.8. That the learned trial magistrate erred in law and fact in sentencing the appellants harshly and ignoring the mitigation tendered by the appellants.

4. The appellants have pleaded that their appeal(s) be allowed, the conviction and sentence be set aside and that they be set free. The prosecution has opposed this appeal and urged that the same be dismissed.

5. By consent recorded in court on June 30, 2020, the parties agreed to proceed with this appeal by way of written submissions. In compliance with the same, both the appellants and the respondents duly filed their submissions in court.

6. Again, the 2 appellants filed similar submissions. They relied on Okeno Versus Republic (1972)EA, that as a first appellate court, this court is"To reconsider the evidence, evaluate it and draw its own conclusion.”

7. That the prosecution did not prove the case beyond any reasonable doubt. They relied on the definition of beyond any reasonable doubt as in the 9th Edition of the Black’s Law Dictionary, and Miller Versus Minister of pension (Lord Denning) that;"that degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of Justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.

8. Counsel for the appellant further submitted on article 50(2)(a) of the constitution and section 107(1) of the Evidence Act on presumption of innocence of an accused person. That apart from PW1 and PW2, there was no corroboration of the evidence that the appellants told the 2 that they had intended to kill the complainant on orders from the Burundian Embassy. Also, that complainant would not have made a call to his wife while in handcuffs and would not have been allowed to have his phone. Counsel also questioned why such mercenaries would have spoken to complainant’s wife or indeed escort the target back to his wife, or even disclose who had commissioned the killing.

9. Counsel relied on the case ofPius Arap Maina Versus Republic (2013)eKLR, that;"it is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution case raising material doubts must be in favour of the accused.”

10. It was further submitted on the evidence of the appellants that they arrested the complainant in the course of their ordinary duties and acting on information. That PW1, corroborated the evidence that the complainant had not been taken to a forest, but somewhere near Lenana School with scattered houses.

11. Further, counsel pointed out apparent contradictions in the evidence of PW1 and PW5. And the fact that complaint made no reference to any what’s up message, which PW13 testified about. He urged that both the conviction and sentence be set aside.

12. While highlighting on the submissions, Mr Wamboi for the appellants conceded that the grounds of appeal could be summarized into 1, whether the case was proved beyond any reasonable doubt.

13. On the side of the prosecution, it was submitted the 2 issues for determination are whether the case was proved beyond any reasonable doubt and the issue of sentence. Reliance was made on both 256 and 258 of thePenal Code regarding the definition and sentence for the offence of abduction. Also the Black’s Law Dictionary, 9th Edition, that;"abduction is that the act of leading someone away by force or fraudulent personation.”

14. It was submitted that the prosecution proved that the appellants by force compelled the complainant to go from a place. Counsel based her submissions mainly on the evidence of PW2, PW3, PW9 and PW12.

15. On sentence, it was submitted by the prosecution, Ms Kibathi, that the sentence meted out was lenient in view of the maximum sentence of 10 years imprisonment provided by section 158 of the Penal Code. The prosecution urged the court to dismiss this appeal for lack of merit.

16. This court is sitting on this matter as a first appellate court. The appellant’s side, submitting on the jurisdiction of this court, relied on the case of Okeno Versus Republic(1972)EA, which spelt out the scope of the court as; to reconsider the evidence, evaluate it and draw its own conclusion. It is therefore imperative that this court do consider the evidence that came up before the trial court, evaluate the same and come up with its conclusion.

17. From the record of the proceedings of the lower court, a total of 13 witnesses testified for the prosecution. PW1, Rose Nsenghyumwa, a Burundian, and wife to Athanza Buregeya, (the complainant), testified that on May 25, 2016 at around 8:30pm, she had been at home in Kilimani, when her husband’s colleague Francisca Kingera called and asked her if she was with her husband and she answered in the negative. Then shortly, one Mkombozi, a staff of Capricon called and told her that her husband had been arrested. Together with one Josephine proceeded to Kilimani police station, but found he had not been booked in there. She also missed him at Muthangari police station. She then went to Caprison Bar, where the Assistant Manager, Bob, told her how her husband had been arrested for allegedly blocking the way with his motor vehicle registration number KCE 3xxC, before being driven away in a taxi. That after several vain attempts at reaching him, her husband finally picked her calls at about 10:30pm and told he had been arrested and was in the forest. That the officer with her husband talked with her on the phone and told her that her husband was safe and would be brought to her at Capricon bar. And after 45 minutes wait, she saw the taxi and a pick up vehicle.

18. That on approaching the taxi, one officer told her that they had been under instructions to arrest him as he was on the list of Burundians who had to be killed and that they had received money for the same. That he was co-operative and looked innocent and they felt they would be haunted if they killed him. The officer then adviced them to relocate and change their car and school for their children. She paid 2000/= for the taxi when she was asked to. Her colleague Isaiah paid 3000/= via Mpesa. They were then escorted home. That all this time, it was 1st appellant (accused 2) who talked to her while 2nd appellant (accused 1) had remained in the car with her husband.

19. PW2, Atanasi Buregeya, on his part, testified that he works for Interpol in Kiambu and that on May 25, 2016, he had been at Capricon Bar near Prestige, when 1st appellant (2nd accused) came and asked for the owner of motor vehicle KCA 3xxC and he stood to confirm. That accused 2 told him he would kill him if he did not cooperate. He then removed his pistol from the waist before calling 2nd appellant (accused 1) to come into the bar. He was handcuffed, and taken into a taxi which had a driver waiting. He managed to call Francisca Kingura, before his 2 phones were taken away. He was driven into trees. He was then told there was information about him and if he did not cooperate, they would kill him. That he had killed many people in Burundi and ran to Kenya. He was also threatened with repatriation. He was also told they had been paid to kill him. He was placed on the ground and searched and on a cross being found on him, he was told that was his protector. He was then taken back to the car and again told they had been sent to kill him. He was advised to relocate and sell his car. That his wife then called. And on the way back, they passed through a police camp, changed into uniforms before escorting him back to Capricon to meet his wife. He witnesses as the taxi driver was paid 5000/=.

20. PW3 Higiro Elia, a supervisor at Capricon Bar, recalled that, a police officer had appeared at their business and told him they were to arrest someone. The officer entered with a registration number and PW2 confirmed same to be his vehicle. After being joined by another man, the officer warned they would shoot him if he did not cooperate. He saw as PW2 was forcefully taken into motor vehicle KCB 2XXT. it was 1st appellant who had come for the complainant, who was later brought back and handed over to his wife.

21. And Ndabirinde Desire, PW4, an employee of PW2, had escorted PW1 to Kilimani police station. He also witnessed as PW2 was brought back to Capricon Bar. He is then one who sent, through his M-pesa, part of the taxi fare. PW5 Nahimana Josephine, testified as to how she had accompanied PW1 to the bar and to 2 police station to look for PW2. She was present PW2 was brought back to the bar.

22. PW6, Aimable Ndayizeye, on his part, gave evidence that on May 23, 2016 between 10-11AM, a police officer had called him and told him he was investigating a case of death of Kahura De Diev who had been killed on the eve of 2016. He informed PW2 about the call 2 days later, only for PW2 to be taken away by police officers on the date of their meeting. And PW7 sergeant Jack Odhiambo, only came into the matter after 2 appellants had been summoned to Kilimani police station. PW8, Lawrence Kimia Jange, only gave evidence on the assistance Safaricom back-up team attempted to avail to the arresting officers. The same evidence was given by PW9, David Mbiti Malombe. And PW10, Saleh Ntabwobwa, a worker at Capricon Bar, was only told about this incident.

23. PW11 Corporal Samson Cheruiyot, recalled that he was part of the investigations team and that when he arrested the driver of motor vehicle registration number KCB 2XXT, one Zacharia Gachucha Muthoni, the driven had confirmed that on the material date, he had been hired by 2 police officers, known to him as Omanga and Macharia, both of Lenana school. The man then told the witness how the officers had arrested a man from Capricon Restaurant, before driving with the man to a bushy like area, then to Lenana School. That the officers thereupon changed into uniforms, took rifles before boarding another vehicle to escort him and the other man back to Capricon.

24. Charles Keruko Thuo, was PW12. His evidence was that on May 25, 2016 at about 10:30PM, he had driven the 2 officers Omanga and Macharia from Lenana school to Prestige in his Toyota Hilux KCE 8XXQ. At Prestige, he witnessed the 2 officers talk to 3 ladies and 3 men for about 30 minutes, before they all escorted the people upto Jamhuri Estate.

25. Lastly PW13, PC Martin M’maina, from his evidence, was the investigating officer in this case. He basically restated the evidence of the earlier witnesses.

26. 1st appellant, Wycliffe Nyakundi Omangi, gave a sworn defence in which he stated that at the time of this incident, he served as a police officer attached to Lenana school. That while on duty at Equity Bank, Prestige together with the 2nd appellant, an informer told them that there was a person who was selling drugs. And that the man was drinking at Capricon Restaurant. They proceeded there in a taxi and arrested the man. That on their way to the post, their driver, one Zakary had an emergency call and picked 2 ladies whom they later transferred to another taxi. That due to another emergency, they proceeded to their post, changed and took firearms, before taking the man back to Capricon to his wife. They then escorted the family home. That they were later arrested and charged. He denied that this was an abduction, but rather a normal arrest. He denied taking the man to Ngong forest.

27. The 2nd appellant, Benson Macharia Wamaitha, gave the same defence, also on oath.

28. I have considered the evidence on record by both the prosecution and the appellant’s sides as captured above. As has been conceded by the appellant’s counsel in the submissions before court, the issues for determination in this appeal can be summarized into the following limbs:-i.Whether the prosecution discharged its burden and proved the case against the appellants beyond any reasonable doubt as required by the law.ii.The issue of sentence.

29. On the issue, it is important to note that the 2 appellants faced a single charge of abduction contrary to section 256 as read with section 258 of the Penal Code. Section 256 of the penal code, defines the offence of abduction as:"Any person, who force compels, or by any deceitful means, induces any person to go from any place is said to about that person.”

30. The counsel for the Respondent, has further referred this court to the case ofTimothy Kagecha Thuku Versus Republic (2020)eKLR, in which the hon justice Wendoh, adopted the definition of abduction from the Blacks law Dictionary, (9th Edition), that;"the act of leading someone away by force or fraudulent personation.”

31. From the above, it is clear that the major components of the offence of abduction is the elements of force and the fact of taking a person away from a place.

32. In our present case, several factors are material in determining whether indeed the offence of abduction was proved against the appellants. First and foremost, is the fact it has been admitted that the 2 appellants are the ones who took away the complainant from Capricon bar and restaurant. The appellants have also admitted that on being asked about the owner of the said motor vehicle parked outside, the complainant readily came up. It is further conceded that the complainant resisted arrest while declaring that he is an officer working with Interpol. He was however, forcefully arrested, handcuffed, bundled into the taxi, and driven away. Though it has been disputed by the appellants, it was the evidence of the complainant that he was driven into a forest (Ngong) off the by-pass and subjected to threats of harm. All this time, the appellants, police officers, were in civilian clothes. They however on their way back passed through their base, changed into uniform and picked up their firearms before escorting the complainant back to Capricon and to his residence. This after the family of the complainant, paid the taxi man his charges of Ksh 5,000/=.

33. The appellants have raised the defence that this was a normal arrest which they effected as police officers while acting on information given by an informer that the complainant was selling drugs. Obviously, the identity of the said informer would not be disclosed and was never disclosed by the appellants. Many other issues came to mind from this defence. What was the identity of the person whose information they had? This in view of the fact that they only appeared and inquired about the owner of the motor vehicle KCE 3xxC, without giving the names of the one they were looking for. If the complainant resisted arrest, was subdued and handcuffed, why did the appellants, not conduct any search on him on the spot instead of bundling him into the taxi and driving away with him? And even after driving away with the complainant, how come they did not take him to the nearest police station to book him? Was he ever booked at any police station? The answer is in the negative. It is even indicative how, after searching the complainant and finding nothing of value on him, the appellants suddenly became very amiable to the complainant to the extent of escorting him back to his family at Capricon Bar and Restaurant, and thereafter, to his residence.

34. The trial court properly analysed these circumstances and arrived at the irresistible conclusion that the above actions of the appellants were not the normal actions of police officers in ordinary discharge of duties of effecting arrests of suspects. I invariably arrive at the same determination. Without a doubt, I am therefore convinced that the prosecution managed and duly discharged its burden of proof and proved the offence of abduction contrary to section 256 as read with section 258 of the Penal Code against the appellants beyond any reasonable doubt as required by the law.

35. I also find defence of the appellants of normal or ordinary arrest as lacking in any merit and I dismiss the same.

36. Regarding the issue of sentence, section 258 of the Penal Codeprovides for a sentence of up to 10 years’ imprisonment. The honourable learned trial magistrate, however sentenced the 2 appellants to a fine of Ksh 1 million each and in default to server 1 year imprisonment. In the sentence proceedings, the court noted that it had considered all the circumstances of the case and that it had opted to mete out a lenient sentence. It is obviously a lenient sentence and I do not find any reason for interfering with the same. I accordingly dismiss the plea for a more lenient sentence.

37. In all, I do not find any merit in this appeal of the 2 appellants. I dismiss same ie criminal appeal No 263/2019 and 264/2019 as consolidated wholly. Orders accordingly.

HON. D. O. OGEMBOJUDGE17/5/2022COURT:Judgment read out in open court in presence of the 2 appellants, Mr. Marube holding brief for Mr. Shadrack Wamboi for the appellants and Ms. Kimani for Ms. Oduor for the state.HON. D. O. OGEMBOJUDGE17/5/2022