[2017] KEHC 2975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 157 OF 2013

PETER MUNGAI NGESERIA….………….………APPELLANT

VERSUS

REPUBLIC………………………………........….RESPONDENT

(Being Appeal against the conviction and sentence of Hon. P.N. Gesora (SPM) delivered on 28th March, 2013 in Machakos Chief Magistrates’ Court Criminal Case No. 476 of 2012)

JUDGMENT

1. The appellant, Peter Muigai Ngeresia was charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. The particulars therein were that the appellant on 8th March, 2012 at the MKC Ranch in Athi River District within the Machakos county, jointly with others not before court while armed with dangerous weapons namely swords and simis, robbed Jones King’oo Kyulu 110 (one hundred and ten) cattle, his cash money Kshs. 200/=, mobile phone make Nokia Kshs. 3,000/= all valued at Kshs. 2,478,200/= and immediately before or immediately after the said robbery used personal violence to the said Jones Kingoo Kyulu.

2. Upon pleading not guilty to the charge, the appellant was put to trial. The prosecution called a total of seven (7) witnesses. The facts as they emerged from the evidence were as follows. Beth Mwendwa Silas (PW1) who was the Livestock Assistant Manager at Kenya Meat Commission (KMC) received a call on 8th March, 2012 from the Portland ranch security officer, Ambrose Mbondo informing her that 110 heads of cattle had been stolen. The Managing Commissioner, Company Secretary Ambrose and PW1 went to Athi River Police Station where they reported the incident. Police officers were assigned and a search was mounted. 103 heads of cattle were recovered on the search and the appellant was arrested in relation to the robbery. She stated that one cow was worth KShs. 22,000/=.

3. Jones King’oo Chulu (PW2) who is a herder at Portland Ranch was assigned to herd 110 heads of cattle on 8th March, 2012. As he was herding at Kitengela, three (3) men approached him and inquired from him if he had seen their cow and further inquired why his cattle had been stuck at the river. PW2 requested the three men to assist him with his cattle. When down the valley, one of the men held him tight by the neck and pulled him to the ground. They tied his hands and mouth and ordered him to be silent. He stayed at the scene for about 2 hours. He opted to cut the rope tied on his legs using a stone he saw nearby. He then forced himself up and saw Mburu, his colleague. Mburu assisted PW2 to free himself. He informed him of the ordeal. Mburu then called and reported the matter and they were directed to go to the office. A report was made to the police, a search mounted and 103 heads of cattle were recovered. PW2’s was said to have been robbed of his Nokia mobile phone worth Kshs. 3,000/= and Kshs. 200/= in cash. PW2 was later called to Athi River Police station where he identified the appellant as one of the robbers. He identified the appellant by face and by his teeth which he said had fluoride. I believe PW2 was referring to fluorosis condition. PW2 identified the appellant in an identification parade. He stated that the appellant was not known to him before the incident. PW2 is said to have received treatment for the injuries sustained on his mouth due to be tied using a rope.

4. Boru Jirmo Haro (PW3) a herder at KMC was also herding on the same day. When he took the cattle to the river he met PW2 walking in a bent position and his hands and mouth were tied using ropes. He freed PW2 who informed him that he had been attacked by three men who took the cattle he was herding. PW3 called the supervisor then they proceeded to Boma Portland. He stated that they set out in a search and 103 cows were recovered in an open space. He confirmed that PW2 had injuries on his hands and mouth.

5. Simon Tunya Sadera (PW4) a foreman at KMC livestock section received a phone call from PW3 informing him that PW2 had been attacked and cows stolen from him. He informed the security officers who informed the police. A search was mounted and 103 cows recovered. He stated that each cow was worth KShs. 30,000/=. He stated that information was received that the appellant had been seen taking away cattle. The appellant was arrested at a place he was playing pool table game. PW4 confirmed that PW2 had injuries on his head and mouth. On cross examination, PW4 stated that leads were gotten from a village elder who identified the appellant. That the appellant is a known thief in the area and that he admitted to having stolen the cows.

6. Ambrose Muondu (PW5), in charge of security at KMC received a phone call informing him of the robbery. He subsequently reported to the police who mounted a search. As a result of the search, 103 cattle were recovered.

7. Francis Wachira (PW6) who is the Deputy Officer in Charge of Athi River Police Station was on 12th March, 2013 at around 3. 30 pm requested to conduct an identification parade. He arranged 8 people with similar physique to that of the appellant. Among the 8 people was the appellant. He asked the appellant to choose where he wanted to stand and he stood between the 3rd and 4th person. PW2 was then called to identify the attacker and he did so by touching the appellant. He stated that the appellant was satisfied with the manner in which the parade was conducted and a parade form was subsequently filled and signed by the appellant. the identification parade form was produced as P. Exhibit 2. On cross examination he stated that he got the members of the parade from the cells who were almost the appellant’s size and complexion.

8. Ag. Inspector Joseph Ngaira (PW7) from Athi River Police Station received a report on the robbery on 8th March, 2012 at about 4. 30 pm. He met PW2 whose hands were swollen and blood was oozing from his mouth. PW2 informed him that he was escorting cows to the river when he met 4 young men. The men tricked him that he had left one cow behind. It was then that he was attacked and tied up and took off with the cows. It was said that the attackers had knives. A search was mounted and 103 cattle were recovered. They were taken to the camp since there was no space at the police station to accommodate the cattle. They were then photographed. The photographs and a certificate to that effect were produced as P. Exhibits 3 and 4 respectively. The following day, he got information from elders that 4 young men had been identified. They laid ambush and arrested the appellant at Kitengela.

9. The appellant was put on his defence to which he gave unsworn statement. He stated that he used to work at a pool game before he was arrested. That he was at work on 10th March, 2012 when three people appeared and arrested him. He was taken to Athi River Police Station where he was charged.

10. The trial court found the appellant guilty, convicted and sentenced to suffer death. Aggrieved by the said conviction and sentence, the appellant filed this appeal on the following grounds:

a) That the charge sheet was duplex and defective.

b) That there was no positive identification.

c) That a crucial witness was not availed.

d) That the evidence was inconsistent.

11. Although four grounds were raised, the appellant only argued the first two grounds. On the first ground, it was the appellant’s contention that it is wrong in law to frame a charge of robbery with violence under two sections of the law. It was submitted that so doing goes against the spirit of section 134 of the Criminal Procedure Code. To support his argument, the appellant relied on Joseph Njuguna Mwaura and 2 others v. Republic (2013) eKLR and Joseph Onyango Owuor and Cliff Ochieng Oduor v. Republic (2010) eKLR. The respondent admitted to the fact that the charge was duplex. It was however argued that although the charge was duplex, the appellant was aware during trial that he was facing the offence of robbery with violence. That there was overwhelming evidence to prove that the appellant committed the offence as charged since all the ingredients of the offence were proved. The substantive law on duplicity is found in section 134 of the Criminal Procedure Code which states:

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with particulars as may be necessary for giving reasonable information to the nature of the offence charged.”

The Court of Appeal for Eastern Africa held in Cherere s/o Gukuli v. Republic (1955) E. A. 478 while addressing the issue of duplicity of a charge held as follows:

“Where two or more offences are charged to the alternative in one count, the count is bad for duplicity contravening section 135(2) of the Criminal Procedure Code. The defect is not merely formal but substantial. When an accused is so charged, it cannot be said that he is not prejudiced because he does not know exactly with what he is charged and if he is convicted he does not know exactly of what he has been convicted…We think it is impossible to say, and certainly no court has so far as we are aware ever yet said, that an accused person is not prejudiced when offences are charged in one count in the alternative; he does not know precisely with what he has been charged, nor of what offence he has been convicted. It is indeed, very difficult to say that a breach of an elementary principle of criminal procedure has not occasioned a failure of justice.”

The offence of robbery is provided for under Section 295 and Section 296 (1) provides the punishment for the offence of robbery while Section 296 (2) provides for a situation where the robbery as defined in Section 295 is aggravated. Section 296 (2) sets out what makes it aggravated and spells out a more severe sentence for the aggravated circumstances. The court in Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, had this to say:

"We reiterate what has been stated by this Court (sic) in various cases before us: the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides that any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge".

12. It follows therefore that the charge in the case at hand as drawn was defective. The next question that begs is the effect of such duplicity. The court in Shah v. Republic [1969] E. A. 197 held that a duplex charge does not necessarily vitiate conviction. That the important question a court faced with such an issue should address itself to is whether or not there was a miscarriage of justice. I note that the court dismissed the appeal in Joseph Onyango (supra) a clear indication that the issue of duplicity was not key to the decision. Applying the test in Shah (supra), it is noteworthy that the appellant herein did not raise the complaint of duplicity at the trial. Further, the appellant conducted his case in as though he understood he was facing the charge of robbery with violence. In the circumstances, I am unable to find that he was prejudiced by the duplicity. That ground must therefore fail.

13. On the second ground, the appellant contended that the evidence on identification did not meet the threshold to sustain a conviction. It was submitted that PW2 was required to have given the description of the assailant while making the report. On this aspect, the appellant cited John Kibii Langat v. Republic (2005) eKLR and Kipwenen Arap Mosonik v. Republic (1980) eKLR where the court so held. It was contended that PW2 failed to elaborate the appellant’s physical features. That from the foregoing, it is clear that identification of the appellant was not satisfactory. He submitted that the identification parade was conducted unprocedurally. That PW2 had seen him before the identification parade thereby identified him without any difficulty. The respondent on the other hand was of the opinion that the appellant was positively identified considering that the robbery occurred during the day.

14. On identification, I am guided by the landmark case of R v. Turnbull and others (1976) 3 All ER 549, which has been widely adopted by our courts. Lord Widgery C.J. had this to say in regard to identification:

“First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation" At what distance" In what light" Was the observation impeded in any way, as for example by passing traffic or a press of people" Had the witness ever seen the accused before" How often" If only occasionally, had he any special reason for remembering the accused" How long elapsed between original observation and the subsequent identification to the police" Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance"(Emphasis mine).

15. In this case, PW2 was said to have been robbed during the day in broad day light. He had the opportunity to converse with the robbers before he was attacked. He was in fact able to describe the appellant’s teeth. Although the appellant argues that the Complaint saw him just before the identification parade, I do not find the argument to hold water since the officer was particular that he first arranged the parade before he called PW2. PW2 was categorical that he could identify his assailant. For the aforesaid reasons coupled with the reasoning in Nelson Julius

Irungu v. Republic, Criminal Appeal No. 24 of 2008,that:

“As this Court has stated before, when it comes to credibility of witnesses an allowance must be given that the trial court was in a better position to make that judgment as it saw and heard the witnesses.”

I have no reason to interfere with the trial court’s finding on identification. The Complainant clearly saw the Appellant as the robbery took place in broad day light.

The appellant further argued that the identification parade was not conducted in the prescribed manner. The court in Gabriel Kamau Njoroge v. Republic (1982-1988) 1KAR 1134,this Court observed:

“A dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.”

It is clear from the evidence of PW7 that PW2 gave him the description of the appellant, although he termed it as identification in his evidence, before he conducted a parade. In my view therefore, the parade was properly conducted. That ground also fails.

16. In the result it is the finding of this court that the trial Prosecutor had proved his case beyond reasonable doubt. The Appeal herein lacks merit. The same is dismissed. The conviction and sentence by the lower court is upheld.

It is so ordered.

Dated, signed and delivered at Machakos this 11th day of October, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Peter Mungai Ngeseria – Appellant

Machogu for Respondent

C/A: Kituva