[2017] KEHC 8673 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 48 of 2015

PETER MWANGI SANGALE...…...…………………………..…….APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in the Chief Magistrate’s Court at Kibera Cr. Case No. 1722 of 2013 delivered by Hon. E.O.Juma, SPM on 22nd February 2015).

JUDGMENT

BACKGROUND

Peter Mwangi Sangale, the Appellant herein was charged with two counts of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of count 1 were that on 3rd May, 2013, at Ngong Hills in Kajiado North District within Kajiado County, jointly with another before court, while armed with crude weapons namely Maasai swords robbed Peter Ndung’u Ndwathi of one mobile phone make Samsung Galaxy II valued at Kshs. 45,000/= and cash Kshs. 5,000/= all totaling Kshs. 50,000/= and immediately after such time of robbery used actual violence to the said Peter Ndung’u Ndwathi.

In Count II, it was alleged that on the same date and place while armed with Maasai Swords, robbed Eva Wamucii Mwangi of one mobile phone make Samsung Galaxy II valued at 45,000/= , one handbag valued at Kshs. 5,000/= and cash Kshs. 3,000/= all totaling Kshs. 53,000/= and immediately at the time of such robbery threatened to use actual violence to the said Eva Wamucii Mwangi.

The Appellant was found guilty on the first count. He was convicted and sentenced to death. Being dissatisfied with the verdict of the magistrate’s court, he preferred the appeal herein. He was dissatisfied that the trial court convicted him on untruthful testimony of the complainant, that the identification parade was not conducted within the guidelines set out in the Force Standing Orders and finally that the learned trial magistrate erred in relying on the evidence of PW2 who was an accomplice in the commission of the offence.

SUBMISSIONS

The Appellant relied on written submissions which he filed on 22nd November, 2016. He raised three major issues. Firstly, that his constitutional right to a fair trial under Article 26(c) of the Constitution was violated in that after the prosecution was allowed to amend the charge sheet he was not given an opportunity to recall PW1 despite having made the respective request. Secondly, that the identification parade in which the complainant identified him was not carried out in a proper manner. In this regard, he took issue with the fact that the witness who identified him saw him before the parade was conducted. He therefore was able to automatically identify him during the parade. He also faulted the parade in that the witness only pointed at him as opposed to touching him in contravention of Rule 6(iv)(d) of the Forces Standing Orders. In addition, he faulted the fact that the investigating officer took part in the parade. Thirdly, he submitted that the prosecution erred in calling PW2 as their witness yet by his own evidence, was an accomplice to the offence. In this regard, he submitted that PW2 was arrested as a suspect and was also subjected to an identification parade but only released after no one identified him.

Learned State Counsel Ms. Aluda opposed the appeal. She submitted that the prosecution proved their case beyond a reasonable doubt. She submitted that PW1’s evidence was that he had stopped to see people who seemed to be praying and were dressed in Maasai kanzu. It is then that the said ‘Maasai’ men accosted him by ordering him to lie down before he was robbed. The Appellant who was amongst the robbers stabbed him on the face while the rest took away his mobile phone. After the matter was reported to Ngong Police Station, on investigations, PW1’s mobile phone was tracked to PW2. Upon interrogation, PW2 told the police that the Appellant gave him the phone as a collateral for some Kshs. 4,000/= he owed him from a table pool game. The Appellant was arrested and a sword recovered from him, which PW1 identified as the one used to stab him during the robbery. On identification, Ms. Aluda submitted that the same was conducted according to the Law and the Appellant was dully identified. She submitted that PW1 only saw the Appellant on the date of the robbery and identification parade. Furthermore, the robbery took place during broad day light when conditions for identification were conducive. Again, after the parade the Appellant stated that he was satisfied with it. Regarding the evidence of PW2, Ms. Aluda submitted that the same was admissible as the Appellant did not object to its adduction. Finally, she submitted that eth Appellant’s defence did not oust the strong prosecution’s case. She urged that the appeal be dismissed.

EVIDENCE.

This being a first appeal, the court has the mandate of evaluating and analyzing the evidence in question while taking into consideration the fact that it did not have the opportunity to hear or see the witnesses and therefore lacked the chance to observe their demeanor. See: Okeno v. Republic[1972] EA 32.

The prosecution’s case is summarized in the evidence of PW1, Peter Ndung’u Ndwathi who was the complainant. On the material date on 3rd March, 2013, he was with a friend around Ngong Hills driving his motor vehicle Reg. No. KBR 547M. When they were negotiating around a hill, they saw two people kneeling down in prayer. They looked like herdsmen. They stopped to see them. That is when one of them who was holding a Maasai sword slapped him with the sword on the left cheek. The other robbed him of his Samsung Galaxy S II mobile phone and cash Kshs. 2,000/=. The robbers then ordered them to lie down and that is when PW1 was stabbed on the right side of his head. His friend drove him to Karen Hospital where he was treated and discharged. On the following day he reported the matter at Ngong Police Station. On 25th May, 2013, his mobile phone was traced to Aga Khan Hospital having been used by PW2. PW2 worked at the hospital as a nurse. He was arrested and on interrogation, helped the police to arrest the person who had sold it to him. PW1 identified the recovered mobile phone as well as the sword that was used to assault him.

PW2, Benson Kamau Chege was a nurse at Agha Khan Hospital. His evidence was that sometime in March, 2013, he met the Appellant while playing pool. He lost 500/= in the game to the Appellant. In the process, the Appellant borrowed Kshs. 4000/= from PW2. The Appellant gave him a mobile phone Samsung Galaxy II as a collateral for the borrowed money until the same was paid. After two weeks, he lost his usual mobile phone and started using the one he had taken from the Appellant. He was not aware that it was a stolen mobile phone until 24th May, 2013 when police officers accosted him and informed him that he was using a stolen mobile phone. He informed the police how he had acquired the phone. He took them to the house of the Appellant who was accordingly arrested. The stolen phone was also recovered and produced as an exhibit. He further testified that initially, the police treated him as a suspect but exonerated him after PW1 did not identify him in the identification parade.

PW3, Inspector Luka Kiptoo, then of CID Kajiado North conducted the identification parade on 26th May, 2013. The witness was PW1. He positively identified the Appellant. On the same date, he also conducted a parade in respect of PW2 who was not identified by PW1. He produced the parade forms as exhibits in court.

PW4, Police Constable Nahashon Mwamba was the investigating officer. He summed up the evidence of all prosecution witnesses and corroborated that of PW1, 2 and 3 in all respects. He also preferred the charges against.

PW5, Dr. Joseph Maundu of Police Surgery examined PW1 on 13th November, 2013. He observed a cut wound to the left side of his head and right upper limb. He also complained of pain on the left side of his face. He confirmed that PW1 had been treated on 3rd March, 2013. He filled the P3 form and produced it as evidence.

After the close of the prosecution’s case, the learned trial magistrate ruled that the Appellant had a case to answer and he put him on his defence. He gave an unsworn statement in which he denied committing the offence. He stated that on 24th March, 2013, he was in Ngong Town when he received a call from a friend who informed him that Police officers were looking for him. He told the friend that he was in Nyayo Stadium at Ngong where the police went and arrested him. The police led him to his house where after a search a Samsung phone was recovered. On the following day he participated in an identification parade in which PW1 identified him. He stated that he was not satisfied with the parade because the witness had seen him in one of the police station offices.

DETERMINATION.

On summarizing the evidence on record, I arrive at the issues for determination as; whether the Appellant’s right to a fair trial was violated, whether the Appellant was properly identified, and whether PW2’s evidence was admissible.

On the first question for determination, the Appellant submitted that his right to a fair hearing was contravened since after the charge sheet was amended, he was not given an opportunity to recall PW1. The record of proceedings does in fact show that he Appellant made the request to recall PW1 and the court conceded. However, it appears that that question was not revisited when PW2 was called to testify or before the close of the prosecution case. Interestingly, the accused did not also remind the court that he intended to re-examine the witness or have the prosecution recall his evidence. The court emphasizes that under Section 214 of the Criminal Procedure Code, after amendment to a charge sheet, the accused has a right of recalling the evidence already tendered to be heard afresh or for purposes of reexamining the witnesses. Having found that the Appellant’s request was not followed up, the test is whether he was prejudiced or an injustice was occasioned to him by the failure to recall PW1. A look at the entire testimony of PW1 shows that the Appellant thoroughly cross-examined the witness. Further, in his making the application to recall the witness, he did not specifically state what he hoped to achieve if the witness testified afresh. He also did not state what gaps he intended to fill if he were to further cross-examine the witness. Again, the Appellant ought to have reminded the court that he still intended to have PW1 recalled before the case for the prosecution was closed. His failure to do so implied that he may have foregone the request. In the circumstances, I conclude that the Appellant was not in any way prejudiced and no injustice was occasioned to him by the failure to recall PW1.

His further submission was that the evidence of PW2 was inadmissible because the witness was in the first instance a suspect. It is true that PW2 was arrested after the stolen mobile phone was tracked to him. The witness at the time of his arrest had explained to the police how he had come by the said mobile phone. But until investigations were completed, the police would not have ascertained the account of explanation given by the witness. That is why he was initially treated as a suspect. A major element in the investigations was comprised in the identification parade conducted by PW3. The witness was not identified by the complainant after which the police were certain that he did not participate in the robbery. That is how they exonerated him and treated him as a prosecution witness. What the police did in my view was the most prudent thing because charging him would not have yielded positive results. In any event, the prosecution have a right to call any witness whom they deem would prove their case. Neither the court nor the accused can dictate who their witnesses are. The court can only bar testimonies of any one prosecution witness if the law does not allow that they testify against the accused. Such a scenario in the instant case does not obtain. I accordingly hold that the evidence of PW2 was admissible.

I now delve into the main issue which is that of identification. The Appellant in this case zeroed in on the identification parade carried out by PW3. He faulted the same on grounds that the witness (PW1) had seen him before the parade was conducted, that the investigating officer participated in the parade and that he was identified by pointing at him as opposed to touching him. I have perused the record of proceedings which shows that the Appellant was first brought to court on 25th May, 2013 when he took plea before the charge sheet was subsequently amended. The identification parade was carried out by PW3 on 26th May, 2013. The date is clearly corroborated by P.EXB 5 which is the parade form produced in respect of the Appellant. The same does show that the parade was done on 26th May, 2013 between 4. 35 and 4. 43 pm. It does not require anything less than common sense to deduce that the complainant or any other witness in the parade was exposed to the Appellant a day before the parade when he took the plea. That ultimately is in contravention of Rule 6(iv)(c) of the Force Standing Orders which gives guidelines be conducted; specifically that the witness should not be exposed to the suspect before the parade. There is however no evidence that the investigating officer participated in the parade. I therefore overrule the Appellant’s submission that the parade was not full proof because the investigating officer was involved in it.

The Appellant did also submit that he was prejudiced in the parade because of a scar he had on his face. In his view the parade officer ought to have lined him up with other members of the parade with similar scars so that it was not obvious he was the culprit. Force’s Standing Order Rule 6(iv)(d) does not make it a requirement that members of the parade needed have similar scars as that of the Appellant. The only requirement is that it should not be made obvious that the disfigurement of the suspect would be easily recognizable. There is no evidence on record indicating that the Appellant’s scar was exposed in such a manner that the witness knew he was the suspect. His submission in that regard therefore fails.

The identification parade aside, the robbery took place in broad day light. The conditions for identification were therefore conducive. In that respect, it was expected that when PW1 reported to the police, he ought to have given the actual physical description of the attackers. Nowhere in his evidence and that of the investigating officer is it indicated that he reported how he would have identified his attackers after the robbery. In that respect, the only other way by which the Appellant would have been linked to the offence is by possession of stolen properties. At this juncture, I do not wish to dwell on this issue having found that the identification parade was faulty and the same was the main basis on which the Appellant was arrested and charged. I will however mention that although the alleged stolen phone was found in the possession of the Appellant, the prosecution did not lead candid evidence on how PW1 identified it as his. It was only adduced in passing that the exhibited mobile phone belonged to him. It is trite that before an accused is called to explain how he came by a stolen property, the prosecution must, inter alia, prove that the thing stolen belongs to the complainant. This test was not established.

In the end, I find that the prosecution did not prove its case beyond a reasonable doubt. This appeal must therefore succeed in any event. I quash the conviction, set aside the death sentence and order that the Appellant be and is hereby forthwith set free. It is so ordered.

DATED AND DELIVERED THIS 27TH DAY OF FEBRUARY, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Appellant in person.

2. M/s Sigei for the Respondent.