[2011] KEHC 1769 (KLR)

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO.39 OF 2009

(CONSOLIDATED WITH CRIMINAL APPEAL NOS.40 AND 42 OF 2009)

PETER MBARIA……………………………………..……..1ST APPELLANT

JULIUS MURAGURI MIATU…………………………...2ND APPELLANT

CYRUS MAINA MIATU………….……………………….3RD APPELLANT

VERSUS

REPUBLIC……………………………….……………….PROSECUTOR

[An Appeal from original conviction and sentence in NarokP.M.CR.C.NO.1336/2006 by Hon S. M. Githinji, Principal Magistrate, dated 6th February, 2009]

JUDGMENT

The appellants were initially charged jointly with another, Parken Korunyo, with six counts of robbery with violence contrary to section 296(2) of the Penal Code. The charges against Parken Korunyo were withdrawn after he escaped.

According to the charge sheet, the appellants are alleged to have participated in a spate of robberies on diverse dates between 20th September and 10th November, 2006. It is alleged that they committed the robberies as follows:

Count 1: -they are said to have robbed Dominic Nkawatei (P.W.8)

on the night of 20th and 21st September, 2006 of cash

Kshs.4,500/= and other personal items at Jora reserve,

Narok.

In the alternative count, it isalleged that the 1st appellant,

otherwise in the course of stealing, dishonestly received

or retained one radio, make Sonitec, the property of

P.W.8, knowing it to have been stolen or unlawfully

obtained.

Count 2: -the appellants were accused of robbing Jackson Oloshoro

Nkawatei (P.W.9) of cash Kshas.1,500/= and personal

items on the night of 12th and 21st September, 2006 at

Jora reserve.

The 1st appellant is charged alternatively with handling

stolen property namely a pair of shoes, the property of

P.W.9

The other complainants in counts 3, 4, 5 and 6 are Ntereni Nkini Nkongoya (P.W.1), Malit Soyiantet (P.W.3), Danson Liarash (P.W.4) Masud Osman (P.W.5).

It was further alleged that in each instance, the appellants were armed with pistols, rungus, simis, bows and arrows. It is also on record that the robberies took place at night.

With regard to the 1st count, it was the evidence of P.W.8 that although he was robbed of the items listed in the charge sheet, he was unable to identify the robbers as it was dark. P.W.8, however, testified that he was able to identify his stolen radio when it was recovered by the police. Similarly P.W.3, P.W.5 and P.W.9 did identify their assailants. It was, however, the evidence of P.W.3 that he was able to identify the bows and arrows stolen from him.

All the appellants denied involvement in the commission of the offence with the 1st appellant maintaining that P.W.13, P.C. Nelson Wanyonyi, the investigating officer went to where he lived with Parken Korunyo (at large) and searched his (1st appellant’s) house and that of Parken Korunyo and a 3rd house in the neigbourhood. From the 1st appellant’s house, P.C. Wanyonyi collected some household items which he took along. The 1st appellant was arrested and upon reaching the police station, he found Parkan Korunyo (at large), the 2nd and 3rd appellants having already been arrested in connection with a different case. The 2nd appellant confirmed that he was arrested together with the 3rd appellant, who is his brother on allegations by their father that they were thieves; that they had family differences with their father. The 2nd appellant confirmed that he was arrested together with his brother, the 3rd appellant but for no apparent reason.

The learned trial magistrate considered the evidence presented by the appellants and by the prosecution witnesses and found, from the evidence of recent possession, that the 1st appellant was guilty of the offences charged in counts 1, 2 and 3; that P.W.1 was able to identify the appellants on the night of the offence and later at an identification parade, confirming the charges in counts 5 and 6 as against 2nd and 3rd appellants That meant that the 1st appellant was acquitted of counts 4, 5 and 6 while the 2nd and 3rd appellants were acquitted of counts 1, 2, 3 and 4. Upon conviction, the appellants were sentenced to death.

Being aggrieved, they brought separate appeals which were consolidated at the commencement of the hearing. The appeal has raised the following condensed grounds:

i)there was no sufficient evidence of identification;

ii)the offence charged was not proved;

iii)the defence was improperly rejected.

Learned counsel for the respondent opposed the appeal arguing that P.W.1 and P.W.4 were able to identify the appellants with the aid of torch lights. They also picked them out at an identification parade and finally that the appellants were found in possession of recently stolen items.

We have considered the evidence on record as well as submissions by both sides. We have noted earlier that P.W.8, the complainant in count 1, did not identify the robbers and the only incriminating evidence presented by him was with regard to the recovery of a radio which he maintained was stolen from him and indeed we have no doubt that he positively identified it as his by his name inscribed on it. However, the evidence of the investigating officers as to where the radio was recovered is not clear.

In his evidence in chief, he stated that:

“In the 1st accused’s house there was a Sonitec radio recovered from 2nd accused person. We arrested 1st and 2nd accused.”

The investigating officer further gave evidence that the 1st and 2nd accused persons occupied two separate houses. In cross-examination by the 1st appellant, he went on to say:

“We got you from your house near Harmony Primary School (Academy). We got the bicycle from your house.”

Relying on the doctrine of recent possession, the learned trial magistrate found that the recovery of the radio from the 1st appellant’s house without acceptable explanation from him was evidence that he was part of the gang that had robbed P.W.8. That finding cannot stand in the light of what we have stated above. There was no evidence that the radio was found in the 1st appellant’s possession.

P.W.9, the complainant in count 2 also did not identify the robbers on the night of the raid but was able to identify a bicycle and a pair of shoes stolen from him. The bicycle, according to the investigating officer was recovered from the 1st appellant’s house. That the recovery was in the presence of the 1st appellant’s landlord.Possession, being an essential ingredient of the doctrine of recent possession and the 1st appellant having denied possession, it was necessary to prove beyond any doubt that the house in which the bicycle was found was the 1st appellant’s. By calling the 1st appellant’s landlord, the prosecution would have proved that he witnessed the recovery of the bicycle from the house and that the house was exclusively occupied by the 1st appellant. Without this nexus, we cannot agree with the learned trial magistrate that there was evidence of recent possession of the bicycle.

Turning to the question of recovery of the shoes, it was P.W.9’s testimony that he lost 3 pairs of shoes in the robbery. After sometime, the investigating officer took him to the prisons where he was shown a pair of brown shoes. He identified it as his from the colour and the number (size). But he admitted that there was nothing unusually unique about the shoes. We agree. The shoes, in our view, were not positively identified by P.W.9. The investigating officer on his part stated that the shoes were recovered from the 1st appellant’s house, yet P.W.9 said the shoes were shown to him at the Prison.

In count 3, the appellants are charged with robbing P.W.1, who was guarding a hotel where various items were stolen. It is further stated that the appellants were armed with guns and simis. The attack was on 21st October, 2006 at 2a.m. and it involved 3 persons, who were unknown to the complainant (P.W.1) prior to the night in question.

These factors notwithstanding, P.W.1 maintained he was able to identify the robbers with the aid of lights from 3 torches which the robbers had; that one of the robbers was close by him; that there was light in the counter area of the shop; that he spend about 11 minutes with the robbers and 5 minutes with the 1st appellant; that he was able to pick out the 1st appellant in the police identification parade. P.W.2 James Karino Ole Ngumei was the owner of the hotel which P.W.1 was guarding. He (P.W.2) confirmed to the trial court that when P.W.1 called him about the attack, he (P.W.1) did not tell him that he could identify any of them.

However, one month later, when P.W.2 and others in the area, whose items had been stolen in previous robberies, were called to the police station to identify the stolen and recovered items, P.W.1 upon being prompted told the police that he could identify one of the robbers. The 1st appellant who was at the station was then paraded with others and identified by P.W.1.

The identification parade was conducted by P.W.12, I.P. Leonard Lutta on 24th November, 2006, exactly one month after the complainants were robbed. I.P. Lutta was emphatic that he conducted a parade in respect of the 2nd appellant, Julius Muraguri, who was identified in the parade by two witnesses, Danson Liarash and Masud Osman, P.W.4 and P.W.5 respectively.

We will revert to the evidence of P.W.4 and P.W.5 but suffice to state that if there was a parade in which P.W.1 identified the appellants, no such evidence was led.

Malit Soyiantet, P.W.3 was the complainant in count 3. He was like the rest attacked at night at about 10p.m. Due to darkness, he too was not able to identify those who attacked him. But one month later, he was called to the police station to identify his stolen personal effects from many recovered items. He was only able to identify some arrows and a bag. He, however, failed to point any peculiar mark on the 26 arrows or the bag to establish ownership. The doctrine of recent possession was, once again, not proved by the evidence presented by P.W.3.

We now revisit the evidence of P.W.4 and P.W.5. Both were employed at Basabra Petrol Station as pump attendants while P.W.6 also worked at the petrol station but as a watchman. They were robbed at 1. 20a.m. by armed gang of 5 members, who were strangers to them. Out of the three, only P.W. 4 maintained that he identified 3 of the 5 robbers, although they were all together. P.W.4 stated he identified the suspect who escaped, the 2nd and 3rd appellants; that he identified them with the aid of light in the area; that he told the police that he could identify 3 of the assailants. He was called to an identification parade one month later where he picked out the three (3).

This evidence cannot pass credibility test. P.W.4 never told his two colleagues that he could identify 3 of the attackers. It is equally incredible that although they were taken hostage by the robbers, only P.W.4 was able to identify them. The police officer to whom he reported that he could identify the robbers was not called as a witness to confirm that assertion. The parade officer, I.P. Lutta, we reiterate confirmed that, the parade he conducted, only P.W 4 and P.W.5 participated in. P.W.5 could not identify any of the robbers in the parade. Only the 3rd appellant was in the parade and only one parade was conducted, according to Ip. Lutta. For these reasons, we find the evidence of P.W.4 untruthful.

For all the reasons given, we come to the conclusion that the learned trial magistrate failed to analyse the evidence before her and thereby fell into grave error. The finding of guilt, conviction and sentence of death cannot stand. We allow the appeal, quash the conviction and set aside the sentence. The appellants are set at liberty forthwith unless otherwise for any other lawful reason detained.

Dated, Delivered and Signed at Nakuru this 8th day of June, 2011.

R.P. V. WENDOH

JUDGE

W. OUKO

JUDGE