[2022] KEHC 14140 (KLR)

Otieno v Republic (Criminal Appeal 67 of 2017) [2022] KEHC 14140 (KLR) (Crim) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14140 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 67 of 2017

DO Ogembo, J

October 18, 2022

Between

Patrick Otieno

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of the Hon. H. Onkwani, SRM, in Milimani Chief Magistrate’s court criminal case no. 1967 of 2016 dated 8. 6.2017)

Judgment

1. Patrick Otieno, the appellant herein was faced with 2 counts of Robbery with violence contrary to section 296(2) of the Penal code. The particulars for count I were that on 1. 12. 2016 along Kenyatta Avenue in Nairobi, Nairobi county, jointly with others not before court, he robbed Ernest Chege Mutunguti of cash 139,000/= (one hundred and thirty nine thousand) and at immediately before the time of such robbery, he threatened to injure the said.

2. Particulars of count II were that on December 1, 2016 along Kenyatta Avenue in Nairobi, within Nairobi County, jointly with others not before court, he robbed Julius Maina Karanja of his mobile phone, make Infinix worth Kshs.15,000/= (Fifteen thousand) and at immediately before the time of such robbery, threatened to injure the said.

3. The case of the appellant proceeded to full hearing. He was eventually convicted and sentenced to death. Dissatisfied with the decision, the appellant filed an appeal before this court on June 21, 2017. In the filed memorandum of appeal, the appellant has raised the following grounds at appeal.1. Thatthe trial magistrate erred in both law and facts when she convicted the appellant while relying on the evidence of chase and arrest yet failed to find that the same was not sound.2. That the trial magistrate erred in both law and facts when he convicted the appellant while relying on evidence of purported visual identification that was not free from error or mistake.3. Thatthe trial magistrate erred in both law and facts when convicting the appellant yet failing to find that the evidence adduced was insufficient.4. Thatthe trial magistrate erred in both law and facts by dismissing the defence of the appellant.

4. The appellant has pleaded that this appeal be allowed, his conviction be quashed and the sentence be set aside. The respondent (state) has opposed this appeal and urged that it be dismissed.

5. By agreement of the parties, this appeal was canvassed by way of written submissions. Both the appellant and respondent’s sides duly filed their submissions.

6. The submissions of the appellant are on many fronts. The appellant first submitted that the charge against him were defective. That the charge (Count I) does not state whether the offender was armed with any dangerous or offensive weapon and the particulars are incomplete at the end. That a hand of a human being (page 14) are not a dangerous weapon within the meaning of the Act. That under 296(2) the charge must state, “armed with a dangerous or offensive weapon or instrument, or was in the company of one or more persons, or at immediately before or immediately after the time of the robbery, wounds, beats or strikes or use any other personal violence to any person. He relied on George Omondi and another v RepublicCriminal Appeal No 5 of 2005 (Msa).

7. On the issue of identification, the appellant submitted that whereas PW1 testified that appellant attacked him alone and took his Kshs.139,000/= nothing was recovered from the appellant upon being arrested. He claimed that this was a case of mistaken identity. He gave the example of another person also arrested but later released.

8. And that PW3 and PW1 were not clear where the group of robbers attacked the 2 complainants at a go or each at a time. Relying on Kiarie v Republic(1984)KLR, he submitted;Before a conviction can be entered against a suspect on account of visual identification, such evidence must be watertight as it is impossible for even an honest witness to make a mistake.”

9. On the circumstances to be considered for identification, he relied on Republic v Turnbull (1976)2 ALL ER 549. And that the fact that the incident was in broad daylight did not lessen the need to consider the evidence of the complainant with caution. On the same point, he relied on Boniface Okeyo v Republic, Criminal Appeal No 52/2000(CA), and Wanjohi & others v Republic, Criminal Appeal 194 of 1985.

10. On the issue of accuracy of identification, the appellant relied on many other cases including:i.Robert Gitau v Republic Criminal Appeal 63/90 (Nakuru)ii.Augustine Njoroge Ritho v Republic, Criminal Appeal 99/98. iii.Mateso v Republic (2013)eKLR 187. iv.Waziri Amani v Republic(1980)TLRv.Michael Norman Mbachu Njoroge v Republic(2016)eKLR.

11. He summed up that there is no direct, cogent, convincing and compelling evidence herein to warrant a conviction of the appellant. While pleading that the court did not in any way consider his defence, he prayed that this appeal be allowed.

12. On the part of the respondent, it was submitted that only 2 issues are for determination i.ei.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the charge sheet was fatally defective.

13. It was submitted that in robbery with violence cases, the following ingredients ought to be proved.a.That the offender is armed with any dangerous or offensive weapon or instrument.b.Thatthe offender was in company of one or more other person or persons, orc.Thatthe offender immediately or before the robbery wounds, beat, strikes or uses violence to any person.

14. That the evidence of PW1 to PW4 proved the robbery and that the appellant was in company of others. And that in the process, PW2 was also injured. That the elements of robbery with violence were proved.

15. On identity of the appellant, it was submitted that the robbery took place in broad daylight and the appellant was arrested immediately leaving no mistake as to his identity, having been caught by PW3 and 4 and beaten up by members of the public.

16. On the issueof failure to call independent witnesses, counsel relied on section 143 of the Evidence Act, that;

17. No particular number of witness shall, in the absence of any provision of law to the contrary, be required for the proof of a fact.”

18. The respondent addressed the fact that the trial court did not address itself on the findings on each count. The court was urged to consider the same. And that the ration in the case of Francis Karioko Muruatetu does not apply in cases of robbery with violence. It was submitted that this appeal be dismissed.

19. I have considered the submission of the 2 rival sides. As a first appellate court, the Jurisdiction of this court is well spelt out. In the case of David Njuguna Kariuki v Republic(2010)eKLR, the court gave directions, thus;

20. The duty of the 1st appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion.”

21. It is therefore the duty of this court, being a first appellate court to carefully consider and evaluate the evidence as tendered before the trial court, and to come up with its independent finding.

22. The case of the prosecution herein commenced with the evidence of Earnest Chege, PW1, that on December 1, 2016, he had withdrawn a sum of Kshs.139,000/= as staff salary, at Family Bank, Kenyatta Avenue. This was at about 4:00pm. He had another cheque of Kshs. 70,000/= to withdraw at NIC City Centre. He was in company of one Julius Maina. That on the way to NIC, he felt hands on his neck and hands on his pocket. His money, Ksh.139,000/= was stolen. His colleague Maina, also lost a phone. According to him, the attackers were 6 men. There were shouts of “thief, thief.” He identified the appellant as the person who held his neck. And that his boss driver James Ndungu who had been in the car opposite NIC witnessed that incident and chased the robbers. In the process, the appellant was arrested. No money was however recovered.

23. On cross examination, the witness went on that the appellant had attacked him as the others took the money. That members of the public chased and caught the appellant whom the witness recognized. That he was attacked from behind, but that he was able to see the appellant’s face. He later recognized the appellant after his arrest. And that it is the police who came and saved the appellant from members of the public. He identified the withdrawal slip (MFI – 1).

24. PW2, James Ndungu, a driver, testified that on December 1, 2016 at about 4:00pm, he had been inside motor vehicle Registration No. KCE 250C on Wabera street near Standard Bank, when he witnessed his colleagues Ernest Chege and Julius Maina being attacked by around 6 men. He shouted “thief, thief.”. That a boda boda rider assisted in arresting the appellant. He confirmed that police officers rescued the appellant and the others take the money.

25. Julius Maina Karanja, PW3, on his part, testified that on the same date on December 1, 2016at about 4:00pm, he had been with Ernest Chege at Family Bank to withdraw money. That as they headed to withdraw another cheque at NIC Bank, he was attacked from behind by around 5 people. That as one person held his throat, others went into his pockets. He lost his Infinix phone, Family Bank ATM card, Identity card and NSSF card. He fell down to follow the screams of “thief, thief.” He then found the appellant down, being beaten by a group of people. He had earlier seen the accused attack Ernest. In court, he identified his treatment notes of Nairobi Outpatient Limited (MFI-2).

26. The 4th witness (PW4) was Dancan Waigera, a boda boda operator at Wabera street. His evidence was that on December 1, 2016 at about 4:00pm, he witnessed a robbery incident from about 50 meters away. He saw a man being strangled. There were 6 or 7 people. He then saw the man being thrown to the ground as one of the robbers ran with money while holding it, towards Kimathi street. That the man is the appellant. He chased him with his motor cycle and caught up with him at Kimathi street, knocked him down and the man fell down. That the appellant turned to call the witness and his friend Sammy thieves. The witness held the appellant wo gave the money to a man in white shirt who ran away with the money. The appellant was then taken away by the police.

27. This witness was cross examined at length. He re-affirmed his testimony that he saw the appellant strangle the complainant. He saw his face and duly stated so in his statement. Also that as he chased the appellant, he caught up with him before the complainant came and identified the appellant. That the appellant had the money stolen, but gave the money away.

28. And PC Stanley Kiseli, (PW5) testified that on December 1, 2016, he rearrested the appellant at Central police station at about 7:00pm, after he had been arrested by members of the public and police on patrol. As the investigating officer, this witness summed up the prosecution’s case and produced the exhibits.

29. Upon being put to his own defence, the appellant gave an unsworn defence in which he stated that on December 1, 2016while walking home at about 4:00pm at Kenyatta Avenue, he was hit by a motor cycle and he fell down. That the owner of the motor cycle started beating him but he was rescued by members of the public, only to also turn against him. He was then rescued by police officers who took him to central police station and was shocked to be charged in court. He called no witness.

30. This basically was the evidence before the trial court. This is a case of robbery with violence. I have considered the evidence above, and I am convinced that the following issues are up or determination in this appeal:i.Whether the offence of robbery with violence was proved by the prosecution.ii.Whether the appellant was identified as the one who robbed the complainant.iii.Defence of the appellant.iv.The issue of sentence.

31. On the first issue of whether the prosecution proved the offence of robbery with violence, it is important to contextualize the ingredients of the offence itself section 296(2) of the penal code defines the offence of robbery with violence of follows:-

32. 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 at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to or any person, he shall be sentenced to death.”

33. The above provision gives the 3 basic ingredients of the offence of robbery with violence. And the findings of the courts resonate with the same. In the now famous case of Oluoch v Republic(1985)KLR 549, the Court of Appeal, gave guidance on this by holding;

34. Under section 296(2) of the Penal Code, robbery with violence is committed in any of the following circumstances,i.The offender is armed with any dangerous or offensive weapon or instrument,ii.The offender is in company with 1 or more person or persons oriii.At or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses any other personal violence to any person.

35. The 3 elements are exclusive of the other in the sense that proof of any single element would amount to proof of the offence of robbery with violence.

36. In our instant case, the prosecution called at least 4 witnesses, PW1, 2, 3 and 4 who gave corroborated evidence that both PW1 and PW2 were strangled by the robbers who then robbed PW1 of Ksh.139,000/=. For PW2, he was robbed of his infinix phone and other personal effects. Personal violence was used on the 2 complainants. And the evidence of these witnesses was that the robbers were between 5 and 6 in number. With this evidence, this court is convinced that the prosecution duly proved that the offence of robbery with violence was proved in this matter.

37. The second and perhaps the more controverted issued herein in this appeal is the issue of identification of the appellant. On this, this court has considered a number of unchallenged pieces of evidence given by the prosecution side. It was the evidence of PW1 that he was attacked from the back, strangled at the neck, as his money was also removed from his pocket. But that he was able in the process to identify the face of the appellant where he turned round. And that after the thieves ran away and the appellant was caught, he was able to identify him. It is the same evidence given by PW3 who was himself attacked, but was able to identify the appellant as the one who attacked and robbed PW1. And PW2, James Ndungu Ngure, observed the whole episode from his parked car. He also identified the appellant as one of the robbers, in fact the one who attacked PW1 before running away with his money.

38. There was even more direct evidence of identification of the appellant by PW4 Dancun Waigera. As a boda boda rider at his stage, he also saw the whole episode. He gave chase of the appellant, caught up with him and knocked him down, leading to his arrest.

39. This incident took place in broad daylight at about 4:00pm and in full sight of at least 2 persons, PW2 and PW4. The appellant was chased and caught by PW4 and other members of the public immediately and within the vicinity. PW4 even gave evidence of how the appellant, on being caught, managed to hand over the loot to an accomplice whom then disappeared with the same.

40. The issue therefore is whether the circumstances at the time allowed for positive identification of the appellant. In view of the above circumstances as shown by the prosecution, I am satisfied that the answer to this issue is in the affirmative and that the identification of the appellant by PW1, 2, 3 and 4 was positive and without any doubt accurate. I so find.

41. On the defence of the appellant, he stated that as he was walking home, PW4 knocked him down before starting to beat him up. That members of the public joined in and he was only later rescued by the police on patrol. With respect, I do not find merit in this defence. This incident took place in an ordinarily crowded central business district of Nairobi. He was arrested at Kenyatta Avenue. Had he been wrongfully knocked down by PW4, I do not see any possibility of PW4 starting to beat him up. I similarly do not see any possibility, if his defence was truthful, of the members of the public joining PW4 in beating the appellant up. In fact, the opposite would have been the case. The defence of the appellant was therefore without a doubt, lacking in any merit. I therefore find that the trial court made a proper finding in dismissing the defence of the appellant.

42. In all, I am convinced that the prosecution managed to and discharged their burden of proof as required by the law, by proving the case against the appellant beyond any reasonable doubt.

43. Lastly, on the issue of sentence, as already noted above, section 296(2) prescribes for a death sentence. The sentence proceedings of April 13, 2017 clearly shown that the appellant was accorded the opportunity to mitigate. The court, in sentencing the appellant to death, duly considered the mitigation of the appellant. I find the sentence both legal and proper and I have no reason to interfere with the same.

44. The sum total is that the appeal filed herein by the appellant, Patrick Otieno, on June 21, 2017 lacks any merit. I dismiss the same wholly. Orders accordingly.

D. O. OGEMBOJUDGE18TH OCTOBER, 2022. COURT:JUDGMENT READ OUT ON LINE IN THE PRESENCE OF THE APPELLANT, (KAMITI MAXIMUM PRISON) AND MS. AKUNJA FOR THE STATE.D. O. OGEMBOJUDGE18TH OCTOBER, 2022.