[2012] KEHC 901 (KLR)

REPUBLIC OF KENYA

High Court at Nyeri

Criminal Appeal 298, 297, 301, 299 & 296B of 2010 [if gte mso 9]><xml>

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PETER KAGIRI WACHIRA.........................................APPELLANT

VERSUS

REPUBLIC...............................................................RESPONDENT

(arising from the judgment of Hon. A.K. Kaniaru Principal

Magistrate Murang'a in Criminal Case No. 827 of 2009)

CONSOLIDATED WITH

ANTHONY MWAI NYAWIRA........................................APPELLANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

(arising from the judgment of Hon. A.K. Kaniaru Principal

Magistrate Murang'a in Criminal Case No. 827 of 2009)

AND

JOHN NDERITU MUIGA.................................................APPELLANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

(arising from the judgment of Hon. A.K. Kaniaru Principal

Magistrate Murang'a in Criminal Case No. 827 of 2009)

AND

JOHN NDERITU MUIGA..................................................APPELLANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

(arising from the judgment of Hon. A.K. Kaniaru Principal

Magistrate Murang'a in Criminal Case No. 827 of 2009)

AND

ANTHONY MWANGI MURIITHI.................................APPELLANT

VERSUS

REPUBLIC................................................................RESPONDENT

(arising from the judgment of Hon. A.K. Kaniaru Principal

Magistrate Murang'a in Criminal Case No. 827 of 2009)

JUDGMENT

The appellants herein were all charged with the offence of Robbery with violence contrary to section 296(2) of the Penal code.

The particulars of the charge was that on 5th day of August 2009 at Mwiyogo village in Endarasha sub location in Nyeri District within Central province being armed with dangerous or offensive weapons namely firearm and Panga robbed Ayub Maimba Kireri of cash Ksh.241,570/= and immediately before or immediately after the time of such robbery threatened to use actual violence to the said Ayub Maimba Kireri.

On count two they all faced the charge of robbery with violence contrary to section 296(2) of the penal code the particulars of which were that on 5th August 2009 at Mwiyogo village Endarasha sub location in Nyeri District within Central province being armed with dangerous weapons namely firearms and pangas robbed Richard Warutere Njeru cash Ksh. 3000/- a mobile phone make motorola L6 valued at Ksh. 8000/- all valued at Ksh.11000/- and immediately before or immediately after the time of such robbery threatened to use actual violence to the said Richard Warutere Njeru.

The first appellant faced the alternative charge of handling stolen property contrary to section 322 (2) of the Penal Code the particulars of which were that on 7th day of August 2009 at Blue Valley Estate in Nyeri District within Central Province otherwise than in the course of stealing dishonestly undertook the retention of a mobile phone make motorola L6 from the benefit of Peter Kagiri Wachira knowing it to be a stolen property.

They denied the charges and were tried convicted and sentenced to death on the two counts of robbery with violence while the first appellant was also found guilty of the alternative charge of handling stolen property.

Being dissatisfied with the said conviction and sentence they each filed the respective appeals.

At the hearing of the said appeals Miss Mwai appeared for Antony Mwai and John Nderitu Mwangi while Peter Kagiri appeared in person.

Miss Maundu appeared for the state.

For the purposes of trial we consolidated the appeals herein

We must point out that Miss Maundu conceded to the appeal by John Nderitu Mungai, Antony Mwangi Muriithi and Peter Kagiri Wachira but opposed the appeal by Antony Mwai Nyawira on the basis that he was found in possession of the motor vehicle used in the robbery and the number place matched that give by the members of the public.

On behalf of the appellant Miss Mwai submitted that there were two scenes.

One scene is at Kanyage Trading Centre where it is alleged a motor vehicle was blocked and robbed

There is also the second scene at Mwiyogo river bridge where it is alleged that another vehicle had stopped to allow give way to another motor vehicle but was instead attacked and the driver and the turnboy robbed of the money.

At the scene of crime no assailant was identified. She submitted that the prosecution sought to connect the motor vehicle at scene at the shopping centre and at the said bridge.

She submitted that P.W.4 had alleged that he identified Anthony Nyawira on the basis that he was tall thin and had brown teeth. She submitted that the complainant did not pick the person according to the features he had seen.

She further submitted that the members of the parade had not been changed and therefore the process had been breached.

She further submitted that there was confusion as to the colour of the car which was at the scene and that P.W.4 stated that the car which was at the scene was grey but the photos of the car produced in court was white.

She further submitted that the trial court shifted the burden of proof to the appellants when he stated that they should have tendered evidence to show where he was. She submitted that the trial magistrate misunderstood the defence of alibi.

She further submitted that as regard to George Mugo Theuri the identification parade was conducted almost two months after the arrest. That P.W.4 said that he could identify the appellant because he had white hair on the head but when he went to the identification parade he stated that the appellant was dark bearded and athletic. She submitted that the appellant complained that the witness had seen him before the identification parade.

She submitted that the time between the arrest and the period was very important and in support her submission relied upon the following authorities:

MOSES KUBIA MITHAI v R. COURT OF APPEAL AT NYERI CRIMINAL APPEAL NO. 122 OF 2009where the court had this to say:

“We say so because firstly the intervening period between the robbery and the arrest was over 5 months. This was relatively along period and P.W.1 who had not given any special or distinctive features peculiarly identifying the appellant before arrest could be mistaken. Moreover the chances of any other innocent person being taken as the robber could not be ruled out secondly failure on the part of P.W.1 to have described the robber before the arrest in our view meant that such evidence should have been reinforced by evidence of other witnesses, the absence of which rendered the conviction unsafe”

On the issue of defence she submitted the case of SALIM ELIJAH MASINDE v R. COURT OF APPEAL AT NAIROBI CRIMINAL APPEAL NO. 125 OF 1985. the court stated that

“an identification parade was conducted thereafter and the complainant asked to view the people on the parade. Clearly the evidence of the parade was worthless, the complainant having seen the appellant before.”

On alibi she submitted the case of KIARIE vs REPUBLIC CRIMINAL APPEAL NO. 93 OF 1983 NAIROBI. CA. That it was for the state to disapprove the same.

The first appellant who was not represented also submitted his written submission which we had a look at. The same has taken issue with his identification.He further submitted that the identification parade was conducted after he had been pointed out and therefore he was highly prejudiced.

He further submitted that he was convicted on purely circumstantial evidence on the basis of mobile phone allegedly recovered from him. He submitted that P.W.1 had stated that it had the photo of his baby boy but at the trial he stated it was a baby girl.

From the above submission we note that the issues for determination are:

i.Was the identification of the appellants safe?

ii.Was the prosecution case against the same proved beyond reasonable doubt?

iii.Did the trial court take into account the appellants defences.

iv.Was their conviction safe ?

To enable us answer the above issue we shall look at the prosecution case against the appellants as we are in law required to do.

P.W.1 RICHARD WARUTERE NJERU stated that he is a driver by profession and was driving motor vehicle No. KAK 931G Mitsubishi canter on the material day as they approached a bridge on the way to Endarasha he saw a motor vehicle on the side of the bridge whose boot door was open. He realised that the bridge was narrow and therefore stopped for the motor vehicle to pass when he was attacked. He stated that he did not see the attackers save for the one who robbed him who was armed with a panga and that the medium built person who assaulted him resembled the 1st appellant. He stated that the screen saver of his mobile phone had a photo of his son but when he was released he stated that the photo was released he stated that the photo was of his baby girl.

P.W.2 stated that he was told by members of the …. that the motor vehicle that the thieves used was a Toyota Corolla saloon white in colour registration No. KAS 058E and that after few day the 4th accused was probed from his shop by the CID who said he was involved in the robbery.

P.W.3 PETER MUREITHI MAHIANYU testified that he was the owner of motor vehicle registration KAS 058E in which he had employed ANTHONY MWAI as the driver and was using the same as a taxi.

P.W.4 BONIFACE MUCHUKI KARIUKI testified that he was selling at a coca cola kiosk at the junction of Nyahururu-Endarashand that on 5th August 2009 motor vehicle registration No. KAS 058E and four occupants stopped at the kiosk. It was grey in colour. He sold them drinks and after a short while they left and came back at high speed with front number plate missing and that he subsequently participated in identification parade where he was able to identify the appellants.

P.W.6 AMBROSE WAMBUA stated that on 6th August 2009 at 10. 00 pm together with corporal LEKASIA helped in arresting of motor vehicle registration No. KAS 058E and that the 2nd appellant who was the driver helped the arrest of the4th accused and that he did not retain anything from the people he had arrested.

From the above evidence we are of the considered opinion that Miss Maundu was right with conceding to this appeal. There was no evidence tendered before the trial magistrate connecting the appellant with the alleged crime herein. The same was only based on circumstantial evidence.

We have also found fault with the identification of the appellants herein and as submitted by Miss Mwai their conviction was not safe.

The prosecution's case was full of doubts such as what was the colour of the motor vehicle allegedly involved in the said robbery was to white or grey? What of the gender of the alleged baby whose photo was used as a screen saver. We are of the considered opinion that the court should have given the benefit of these doubts to the appellant.

We have also found fault with the way the identification parade were conducted and found that the appellants were prejudiced by the same.

We therefore find that the prosecution's case against the appellants was not proved beyond reasonable doubt as required and therefore their conviction was not safe.

We therefore allow the appeal herein set aside the convictions and quash the sentence. The appellants should be set free forthwith unless otherwise lawfully held.

Dated and delivered at Nyeri this 1st day of November 2012.

J.K. SERGON

JUDGE

J. WAKIAGA

JUDGE

1/11/2012

Before Hon. Justice J. Wakiaga - judge

Court clerk - Wanjohi

Peter Kagiri Wachira -

Anthony Mwai Nyawira

John Nderitu Muiga

N/A by Miss Mwai

Miss Maundu for the state.

Court -Judgment read in open court in the presence of the above.

J. WAKIAGA

JUDGE