[2017] KEHC 1433 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 12 OF 2015

PETER NJIRU IGERIA……..……….APPELLANT

-VERSUS-

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

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (S. Jalang’o) at Baricho, Criminal Case No. 826 of 2013 delivered on 17th April, 2015)

JUDGMENT

1. The appellantPeter Njiru Igeria,was charged before the Principal Magistrate’s Court Baricho with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code in Criminal Case No. 826/2013. The particulars of the charge are that on 11th September, 2013 at Kandongu Trading Centre in Mwea West District within Kirinyaga County jointly with others not before court robbed Raphael Thome Solomon Ksh.6000/= and one mobile phone make Nokia 220 all valued at Ksh.13,000/= and at or immediately before or immediately after the time of such robbery, injured the said Raphael Thome Solomon.

2. The appellant denied the charge. The trial proceeded and after a full trial the appellant was convicted and sentenced to death. The appellant was dissatisfied with the conviction and sentence and filed this appeal raising the following grounds

i. I pleaded not guilty.

ii. That the learned trial magistrate erred in both law and facts by not considering that the complainant claimed to have seen the accused but no parade was conducted yet the complainant did not know the accused there before.

iii. That the learned trial magistrate erred in both law and facts in his judgment he stated that the complainant knew the accused but in the O.B. report the complainant reported that he did not know the robbers in the alleged robbery.

iv. That the learned trial magistrate erred in both law and facts by not considering that the investigating officer told the court that he recorded the statement on 16th April, 2013 which was long before the occurrence of alleged robbery.

v. That the learned trial magistrate erred in both law and facts when he failed to observe contradictions that the arresting officer stated the alleged robbery occurred on 9th September, 2013 and the charge sheet shows that the alleged robbery occurred on 11th September, 2013.

vi. That the learned trial magistrate erred in both law and facts by failing to observe that the investigating and arresting officer testified that the accused was in a green shirt and was a brown short man which was centrally to the testimony given by the complainant.

3. The facts of the case are that the complainant Raphael Thome Solomon, (P.W. 2) went home at about 9. 00 p.m. on 11th September, 2013. On reaching the gate of his home he hooted and his worker Boniface Mutisia (P.W.3) went and opened for him. All of a sudden five men who were armed with rungus and pangas emerged from the fence and attacked him and his worker. They demanded money. He gave them Ksh.6,000/=. They demanded more money. They broke the windscreen of his motor vehicle. They also stole his mobile phone make Nokia 220 valued at ksh.7,000/=. There were security lights at the gate and in the compound. P.W. 4 Lilian Nyambura Muthoni who was in the house pressed the alarm. One man entered the house while armed with a panga. P.W. 4 identified the man as the appellant who she knew before. The appellant was also identified by Raphael Thome (P.W. 2) and Boniface Mutisya (P.W. 3) with the help of the security light as he was a person they knew. After the alarm was raised the robbers escaped. The complainant went and reported to the Police at Kiamiciri. Administration Policemen went to the scene after they were called by neighbours but found the robbers had escaped. Later Raphael Thome (P.W. 2) pointed out the appellant to the Police and he was arrested. He was then charged.

4. The grounds of appeal raise the issue of identification. This being a first appeal, this Court has a duty to analyse the evidence and come up with its own finding but bearing in mind that I did not have the benefit of seeing the witnesses and leave room for that, Okeno -V- Republic (1972 E.A. 32.

5. The evidence was adduced by P.W. 2 Raphael Thome on how the robbery was committed as stated above. He stated that he was attacked at the gate where there were very bright security lights. The fact that there were security lights at the gate and in the compound was corroborated by the testimonies of P.W. 3 and 4. This testimony proves beyond any reasonable doubts that there were security lights from electricity. With such lights, they favoured a positive identification and recognition. P.W. 2 testified that he identified the appellant as he knew him before as a customer in his bar. From the testimony of P.W. 2 it is clear that circumstances favoured a positive identification. I am inclined to believe that P.W 2 could in the circumstances recognise the appellant as one of the robbers. This is shown by the fact that P.W. 2 is the one who led Police to arrest the appellant. This is in the testimony of P.W. V1 (6) who testified that on 11th September, 2013 he received a report that the complainant had been attacked at his home. He rushed to his home in company of Sergeant Njuguna, APC Nixon Kabui, APC Milton Owuor. They found that the complainant had been injured and items stolen. The attackers had escaped. The complainant informed them that he had managed to identify one attacker who was short and brown. That he had worn a green shirt and he was a customer at his club. On 15th September, 2013 at 4. 00 p.m. the complainant led P.W. VI together with other policemen to the location where the attacker was heading. The complainant identified the attacker to the Policemen and they managed to arrest him.

6. This proves beyond any reasonable doubts that the complainant had recognized the appellant as one of the assailants. The complainant (P.W.2) described the intensity of the light at his gate as very bright that one could see a needle on the ground. I am of the view that with such light, P.W. 2 could not have failed to recognize a person he had seen before for one month. The evidence of P.W. 2 is water tight, leaving no room for doubt. I am satisfied that he recognized the appellant as one of the robbers.

7. This testimony of P.W. 2 was corroborated. P.W. 3 Boniface Mutisya Mwanza who was an employee of the complainant testified that his employer came home at 9. 00 p.m. On 11th September, 2013 and hooted. As he opened the gate a group of young men armed with pangas and rungus emerged and attacked him. They cut him with a panga. They took him inside the house and he heard them demanding money. He identified the appellant as he used to see him in the complainant’s bar prior to the incident. P.W. 3 testified that the security light was on and so he was able to see the appellant clearly.

8. The testimony of P.W. 3 that he was injured is corroborated by the testimony of P.W. 1 John Mwangi, a clinical officer at Kerugoya County Hospital. P.W. 1 testified that on 16th September, 2013 he filled a P. 3 form for Boniface Mutisya (P.W. 3) who was assaulted by robbers. P.W. 3 alleged that he was assaulted by someone known to him. He had a deep cut wound on the left side of the head. The degree of injury was harm. The P3 form was produced as exhibit 1 and the discharge summary exhibit 2.

9. In cross-examination, P.W. 3 confirmed that he knew the appellant very well and gave his name as Peterson Njiru. The evidence of P.W. 3 was not shaken in cross-examination. It remained intact. I am of the view that the evidence by P.W. 3 proves beyond any reasonable doubts that the appellant was one of the assailants.

10. Evidence was adduced by P.W. IV (4) Lilian Nyambura Muthoni who is a daughter of the complainant. Her testimony was that she was at home when at around 9. 00 p.m. she heard her father screaming. She went to check and saw a group of young men who were armed. She saw one of the men breaking a security light. She put on the alarm. After five minutes the lights went off. This testimony shows that from the time she heard the screams and saw the armed men lights were on for about five minutes. This means that P.W. 2 and 3 had five minutes with attackers while the lights were on. For P.W. 4 she was inside the house. She locked herself in the table room. The door was broken. She rushed to the bedroom. A man entered the bed room and was armed with a panga. He demanded money. P.W. 4 told the attacker she had no money. He searched in the room then left. P.W. 4 said she recognized the appellant who used to frequent her father’s bars. P.W. 4 stated that she knew the appellant very well. She told the Court the appellant was near the security lights and tried to break the security lights and P.W. 4 testified that her father and their watchman P.W. 3 were injured. The evidence of P.W. 4 remained intact after cross-examination. I found no reason to doubt P.W. 4.

11. From the evidence of P.W. 2, 3 and 4 it is clear that they knew the appellant before and they were able to recognize him during the robbery. The three were the eye witnesses in the robbery. Their evidence proves that the appellant was one of the robbers who attacked the complainant on the material night and robbed him cash ksh.6,000/= and a mobile phone. The testimony of P.W. 2 that he was wounded during the robbery was corroborated by the testimony of P.W. 1 the clinical officer who testified that the complainant Raphael Thome Solomon (P.W. 2) had bruises on the face and the left lower leg was swollen and tender. The injury was caused by blunt object and the degree of injury was harm. He produced the P3 form as exhibit 3 and treatment notes as exhibit 4.

12. P.W. V P.C. Joseph Soita testified that he received the report of the robbery and was also informed that the appellant was identified during the robbery. The appellant was arrested by Administration Policemen. He then charged the appellant. P.W. V in re-examination stated that he recorded his statement on 16th April, 2014 after he failed to arrest other suspects.

13. P.W. VI Administration Police Officer attached to Mwea West Sub-County arrested the appellant as stated above. The evidence adduced was sufficient, well corroborated and left no doubt that the appellant was one of the robbers.

14. Despite this, the appellant has challenged the conviction based on the above grounds. He faults the Court for not considering that no identification parade was conducted. In his submissions the appellant submits that the identification by the witnesses was not free from error and mistake. He further submits that the complainant did not give the name of assailant when he made his first report at Kiamiciri Police Post. P.W. 2 testified that he knew the appellant very well as he used to frequent his bar. P.W. 2 testified that the appellant confronted him and demanded money in full view of security lights and vehicle headlights. P.W. 2 had sufficient time to see and to recognize the appellant. P.W. 2 was involved in the arrest of appellant. An identification parade was not necessary as the appellant was well known to the P.W. 2 prior to the incident. The parade would not have been of any probative value. In any case the testimony of P.W. 2 was corroborated by the testimony of P.W. 3 and 4 that the appellant was one of the attackers. The complainant recognized the appellant. P.W. 3 and 4 similarly stated that they knew the appellant before the incident and recognized him during the robbery. The Court Appeal in the case of Peter Kerera -V- R (2014) eKLR stated;

“Recognition is more reliable than identification of a stranger. As this Court stated in case of ANJONONI V R, KLR 1 [1976-1980] at 1566 to 1568 this is because:

“………recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

Although the conviction was based on the evidence of a single witness, we are satisfied that both the trial court and the High Court properly directed themselves on the question of identification of the appellant. Both courts made concurrent findings of fact that the appellant was known to P.W. 1 for several years before the day of the attack.”

Where the assailant has been recognized, even by a single witness a court can convict. In this case the appellant was recognized by three witnesses who had known him for a period of one month. It was safe for the trial court to rely on their testimony to convict.

15. The Court of Appeal in the case of Peter Musau Mwanzia -V- Republic [2008] eKLR dealt with the issue of recognition and stated:-

“In the well known case of R vs Turnbull (1976) 3 LL ER 549 at page 552, it was stated: “Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger……….”

The witnesses in this case gave the circumstances of the cases. That is to say, there were bright security lights at the gate and in the compound. The appellant was a frequent customer at the complainant’s bar. The witnesses P.W.2, 3 and 4 saw the appellant under those circumstances. I find that there was no possibility of mistaken identity.

16. The appellant submits that P.W. 5 stated that he received a message from an informer that the informer was not called. P.W. 5 was not required to disclose the informer or even call him as a witness. As such the authorities cited by the appellant that is Bukenya -V- Uganda (1972) E.A.C.A. and Juma Ngonda -V- R are not relevant.

17. The appellant submits that the evidence was inconsistent and contradictory. He submits that the trial magistrate stated that the complainant knew the appellant but in the Occurrence Book he did not give the name of the appellant. Though the appellant said he wished to have the Occurrence Book produced as exhibit, the Occurrence Book was not produced in Court. However, P.W. -V- (5) testified that he received the report on 11th September, 2013 at 9. 45 p.m. and rushed to the scene. P.W. 5 stated that the complainant was able to identify the appellant. P.W. 5 stated that all the witnesses had identified the appellant. P.W. 5 was given the report at the scene of the robbery. The Court could not speculate on what was booked in the Occurrence Book. The witnesses placed the appellant at the scene of robbery on the material night. In his submissions the appellant does not deny the fact of the robbery. Other than what the witnesses stated, there is no other indication that the appellant was somewhere else. There is therefore no reason why the Court should not believe the witnesses who saw the appellant on that material night. The trial magistrate who had the benefit of seeing the witnesses when they testified and assess their demeanor, found that they (P.W. 2, 3 and 4) were able to place the appellant at the scene of crime, they recognized him and they knew him very well. The identification led to arrest of accused. There was no doubt that the appellant was recognized and it is the complainant who led Police to his arrest. P.W. 5 confirmed that the complainant reported to him at the scene the same night that he recognized the appellant. This was also confirmed by P.W. VI who also went to the scene the same night and was told that one attacker was identified and his description given and the clothes he was wearing.

18. The appellant faults the testimony of the investigating officer that he said he recorded the statement on 16th April, 2013 long before the alleged robbery. The appellant is trying to make a mountain out of a mole hill. This is because P.W. V (5) was re-examined at the same sitting in the presence of the appellant and he clarified that the date was 16th April, 2014 when he recorded his statement after he was unable to arrest the other suspects. With this clarification the testimony cannot be faulted. The appellant faults the evidence of the arresting officer who stated that the date of the robbery was 9th September, 2013. P.W. 6 the arresting officer clarified that it was an error on his part. The date of the robbery is not in dispute. It was given by the key witnesses, P.W. 2, 3 and 4. It is the date stated on the charge sheet. This as submitted by the State was a minor anomaly which did not prejudice the appellant in any way or affect the material facts of the case.

19. The appellant faults the Court for failing to observe that there was contradiction in that, the arresting officer stated he was given a description contrary to the testimony of the complainant. P.W. 2, 3 and 4 stated in their testimony that they knew the appellant prior to the robbery and they recognized him during the robbery. The complainant stated that he gave a description of the appellant to the Police. There is no contradiction. A description was given which was necessary to enable the Police in their investigations and arrest. There is no material contradiction and no doubts are cast. In a binding decision of the Court of Appeal in the case of Daniel Njoroge Mbugua -V- Republic (2014) eKLR, the Court stated:

“From the record we find that the evidence of P.W. 1 and 2 was consistent and their testimonies corroborative. Any discrepancies or inconsistencies in the evidence adduced by the prosecution were minor and did not weaken the probative value of the evidence on record.”

20. The evidence of the identification of the appellant is overwhelming. The minor inconsistencies do not change this strong fact of recognition of the appellant during the robbery.

21. The prosecution discharged its burden of proof as required in criminal matters. The appellant was charged with robbery with violence contrary to Section 296 (2) of the Penal Code. The Section provides:

“If the offender is armed with any dangerous or offensive weapon or instrument, or is company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

In the case of Daniel Njoroge Mbugua -V- R (supra) the Court of Appeal stated:

“The ingredients of the offence of robbery with violence were further elaborated by the Court of Appeal in the case of Oluoch vs Republic (1985) KLR where it was held that robbery with violence is committed in any of the following circumstances:

“(a) The offender is armed with any dangerous and offensive weapon or instrument; or

(b) The offender is in company with one or more person or persons; or

(c) At or immediately before or immediately after the time or the robbery the offender wounds, beats, strikes or uses other personal violence to any person………” emphasis supplied.

The use of the word “or” implies that if any of the three conditions is fulfilled then the offence would be said to have been committed.”

22. In this case the particulars stated the appellant with others not before Court robbed Raphael Thome Solomon of Ksh.6000/= and a mobile phone Nokia 220 valued at Ksh.7000/= all valued at ksh.13,000/= and at or immediately before or immediately after the time of such robbery injured the said Raphael Thome Solomon. The prosecution proved that the appellant was in company of four other men who were armed with pangas and rungus (sticks) which are dangerous and offensive weapons, they used violence on the complainant P.W. 2 by injuring him as testified and confirmed by P.W. 1 who produced P3 form and treatment notes exhibit 3 and 4. The complainant was occasioned bodily harm. The appellant robbed the complainant cash Ksh.6,000/= and mobile phone. The prosecution proved that P.W. 3 was also injured during the robbery. The appellant was lucky that he was not charged with wounding P.W. 3 who sustained serious injuries in the same transaction. The prosecution discharged its burden to prove all the ingredients of the charge.

23. I am of the opinion that the prosecution proved the charge against the appellant beyond any reasonable doubts. The stated grounds of appeal must fail. The conviction and sentence of the appellant was based on overwhelming evidence. This appeal must therefore fail. I dismiss the appeal.

Dated and delivered at Kerugoya this 2nd day of November, 2017.

L. W. GITARI

JUDGE

Judgment delivered in open court in the presence of the appellant, Mr. Omayo, prosecution Counsel, court assistant Naomi Murage this 2nd day of November, 2017.

L. W. GITARI

JUDGE

2. 11. 2017