[2022] KEHC 13574 (KLR)

Omusula v Director of Public Prosecutions (Criminal Appeal 52 of 2017) [2022] KEHC 13574 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13574 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 52 of 2017

WM Musyoka, J

October 7, 2022

Between

Joshua Ashoya Omusula

Appellant

and

Director of Public Prosecutions

Respondent

(Being an appeal from the judgment of Hon. F Makoyo, Principal Magistrate, in Butere SPMCCRC No. 215 of 2016, delivered on 25h April 2017)

Judgment

1. The appellant had been charged before the trial court of the offence of robbery with violence, contrary to section 296(2) of the Penal Code, cap 63, Laws of Kenya; with an alternative charge of handling stolen goods, contrary to section 322(1)(2) of the Penal Code. He pleaded not guilty, and a trial was conducted.

2. Four witnesses testified. PW1, Linet Malumbe, stated that she was asleep at midnight, when someone spoke outside, asking that the door be opened, claiming it was the police. She opened, and saw a person she identified as her neighbour there, also known as panga moja, armed with a panga and rungu. He was with a group of people. The man raised a rungu at her, and touched her breast. She raised alarm, and ran towards a neighbour’s house. When she and her helpers went back to her house, she established that 2 kilogrammes of maize, an ATM card, a national identity card, a radio, Kshs 9, 500. 00 in cash and a super drum were missing. They followed a trail left by grains of maize that had dropped, and it led to the house of the appellant, some 300 metres away. They found the appellant at his house. They found maize in the super drum, and her radio on the bed. She identified the super drum, as it had an identification mark. The appellant was arrested.

3. PW2, Samuel Oyando Aswani, testified next. He was sleeping at 2. 00 am on the material day, when he got a call from the area chief, and was informed that some people had raided the home of PW1. He mobilised members of the village vigilante group, and went to the said home. PW1 informed them that one of the attackers was the appellant. They followed the trail left by the maize droppings, which led them to the house of the appellant. They found him, as he was making to leave his house. They searched the house, and found PW1’s radio on the bed, and her drum, with maize inside. He said that the appellant was also known as panga moja. He said that he knew him before that day. PW3, another member of the village security group, gave similar evidence. PW4 was the police officer who investigated the matter. He gave details of how the report of the incident was made to him, and of the steps he took in the investigation of the matter.

4. After reviewing the prosecution evidence, the trial court put the appellant on his defence. Upon being put on his defence, the appellant gave a sworn statement, in which he dealt on his arrest by the police. He confirmed that PW1 was his neighbour, and that she knew him, and could identify him, even at night. The court convicted him, and sentenced him to death as per section 296(2) of the Penal Code.

5. The appellant was aggrieved of his conviction and sentence, and filed the instant appeal. He raises issues around identification, contradictions and inconsistencies in the evidence, evidence of the first report to the police was not produced, the application of the recent possession principle by the trial court, possession of stolen items, his house being searched in her absence, and burden of proof being shifted to him. He filed supplementary grounds, where he largely repeated the same grounds, save that a crucial witness was not called, his arrest was illegal, an inventory or list of the recovered items was not produced, and the case was not proved beyond reasonable doubt.

6. This is one of the matters that were being handled by F Amin J. I took over the matter from her on June 16, 2022. Directions were given on January 25, 2021, for disposal of the matter by way of written submissions. When the matter was mentioned before the judge on November 22, 2021, none of the parties had filed their written submissions. The date for judgement, on May 12, 2022, was allocated by the judge on March 17, 2022, by which date none of them had filed written submissions.

7. I have carefully gone through the record. I note that the complainant, PW1, and the appellant were well known to each other, being neighbours. The incident happened at night, but PW1 testified that she switched on electric lights, and had a solar touch. She said she was able to identify the appellant, on account of the lighting from the electric light and the solar torch. I note too that she said that the appellant came close enough to her and touched her breast. The appellant, in his defence statement, conceded that PW1 knew him well enough to be able to identify him even at night. She said a trail of maize led to his house, and PW1 said that he found items in there which belonged to her, and which she said were stolen from her house that same night. The case of how the appellant was identified is, no doubt, fairly straightforward. It was a case of recognition, not even identification. The appellant was apprehended shortly after the incident, and was found in possession of some of the items that PW1 found to be missing from her house. The appellant was armed with offensive weapons, which he threatened to use on PW1, and he was accompanied by others, all being ingredients of the offence of robbery with violence, as defined in section 296(2) of the Penal Code.

8. From the material on record, I am persuaded that the prosecution had established its case against the appellant beyond reasonable doubt. There is no merit in the appeal. I hereby affirm the conviction, and confirm the sentence, with the result that the appeal is hereby dismissed.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7THDAY OF OCTOBER 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Joshua Ashioya Omusula, appellant, in person.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.