[2017] KEHC 1120 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HCCRA NO. 158 OF 2014

PUKIN LELAMPA..................................APPELLANT

VERSUS

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

(An appeal against both conviction and sentence of Hon. J. M. Irura,

Ag. PM in Isiolo Law Courts on 13th March, 2014

in Criminal Case No.228/2013).

J U D G M E NT

The two appellants were charged with the offence of Robbery contrary to Section 295 of the Penal Code. The particulars of the offence read as follows:-

“On the 25th day of March, 2013 at around 1100p.m at Lorubae village in Samburu County within Rift-Valley province jointly robbed REUBEN LEMAKIMA one mobile phone make Techno, Cash Kshs.7,000/- and personal documents all valued at Kshs.12,000/- and at or immediately before or immediately after the time of such robbery used actual violence to the said REUBEN LEMAKIMA”.

The trial court found the appellants guilty of the offence of robbery with violence and sentenced them to suffer death. The grounds of Appeal are similar. They are that:-

1. There was a grudge between the appellants and PW1.

2. The Prosecution did not prove its case beyond reasonable doubt.

3. There was no positive identification.

4. The Trial Court relied on the evidence of a single witness.

5. The appellants sworn defence was not considered.

6. The Prosecution evidence is full of inconsistencies, contradiction and is uncorroborated.

The submissions by both appellants is that PW1 did not tell the trial court whether there was an argument or quarrel before he was attacked. He testified that the two people just attacked him. This means that he had no time to recognize anyone. The incident occurred at night. The identification of the attackers is not positive. No other person witnessed the attack. There was no independent witness who proved that indeed the appellants were the attackers. All the witnesses were from the same family.

The appellants further submit that there was a grudge between them and PW1. PW1 went to his sister to report that he had been attacked. They then agreed to frame the appellants. PW4 contradicted himself. At one point he told the court that they used torches to follow the footsteps. He then stated that the following morning they followed footsteps which led them to the Manyatta of Kiyamae. According to the appellants, it’s not clear whether they followed the footsteps that night or in the morning.

The appellants contend that the recovery of the mobile phone is not clear. The evidence of PW4, PW5 and PW7 is inconsistent and uncorroborated. One witness testified that it was recovered from a poach, another witness said it was removed from Pukin’s coat while PW4 said it was Kiyamae who produced it. The same applied to the recovery of Kshs.300.

Mr. Odhiambo opposed the appeal. Counsel submit that the incident occurred at about 1. 00 p.m. According to PW1, there was moonlight which enabled him to identify the appellants. PW1 knew the 1st appellant, Kiyamae since childhood. PW1 described the weapons each of the appellant had. PW1 soon reported to his sister after the incident. The witnesses followed footsteps which led them to the appellant’s home. The first appellant was found with PW1’s phone. The 2nd appellant was with the first appellant. Both appellants took PW3 and PW4 where they had dropped PW1’s documents. The documents were recovered and were produced in court. The appellants were arrested in the morning.

This is a first appeal and the court has to evaluate the evidence afresh and make its own conclusion. PW1 REUBEN LEMAKIMA is the Chief of KIPSING location and was the complainant. On 25/3/2013 he went to visit his sister at Archers Post at about 9. 00pm to check on his cattle. While on his way back, he met two people near a stream. They attacked him. He was able to identify the 1st appellant through the aide of moonlight. He knew the first appellant from childhood. The first appellant was armed with a rungu while the 2nd appellant had a small walking stick. He was hit on the chest and later stabbed with a knife on the jaw. He became unconscious. The attackers took Kshs.7,000/-, photocopies of his motor vehicle logbook, police abstract, photocopy of transfer of vehicle letter and his SOI Techno phone.

It is PW1’s evidence that he regained consciousness and went back to his sister’s house at about 11. 00 p.m. He was taken to a Health Centre at Archers Post for treatment. The following morning he went to report at Archers Police Station. The appellants were taken to the police station while PW1 was making his report. His phone and kshs.300 together with his documents were recovered. A rungu and a knife were recovered too. He told the court that he had no grudge with the appellants.

PW2 MARYANN LESUTIO is a sister to PW1. She lives at Archers Post. On 25/03/2013 PW1 went to visit her. At night she heard dogs barking. She came out and saw PW1 who had an injury on the upper lip and left elbow. PW2 called her children. They took Pw1 to hospital where he was treated. PW1 told her that he met two morans on his way home who attacked him. He said that he was attacked by Kiyamae and Putin. The local morans went to look for the attackers. The appellants were arrested. She was not present when the appellants were arrested.

PW3 ANDREW LEMEKIN was at Archers Post. On 25/03/2013 at 11. 00 pm he was asleep when his sister(PW2) woke him up. He went to her home and saw PW1 who told them that he had been attacked by the two appellants and robbed of his property. They went to the scene about three kilometres away. Morans followed footprints but he did not go with them. The morans arrested the appellants. PW3 is a brother to PW1.

PW4 JOSEPH NTOKEN LESUNTIA is a herdsman and an uncle to PW1. He saw PW1 at 11. 00 p.m. They took PW1 to hospital. In the morning they followed footsteps which led them to the Manyatta of the 1st appellant(Kiyamae). It was about 5. 00 a.m. They found the two appellants. The first appellant produced PW1’s phone. They also recovered kshs.300 from the appellants. The appellants agreed to take them where they had thrown PW1’s documents. They went there and recovered the victim’s documents. PW1 identified them as his documents.

PW5 DAVID LESUNTIO is PW2’s son. He testified that on 25/03/2013 PW1 visited them. He stayed there until about 10. 30 p.m. PW1 went back to their home and had injuries. He told them that he had been attacked. They took PW1 to hospital. They followed footsteps which led them to the 1st appellant’s home. They recovered PW1’s phone, Kshs.300 and PW1’s documents. The appellants took them to where they had thrown the documents. They arrested the appellants and took them to Archers Post Police Station.

PW6 FRED NDEKI is a registered Clinical Officer. He examined PW1 and filed a P3 form on 28/3/2013. PW1 had a cut on the upper lip, left side, broken second molar tooth and swollen chest. He classified the injuries as grievous harm.

PW7 PC JOHN AYUKO was attacked at the Archers Post Police Station. He investigated the case. The case was reported on 26/3/2013 by PW1 at 7. 30 a.m. The two appellants were taken to the station by members of public. PW7 visited the scene and found blood stains on the ground. He produced PW1’s items that were recovered from the appellants.

In his sworn defence, the first appellant, KIYAMAE LESALKAPO testified that he is a herdsman. He was asleep in his home when he was arrested. He was charged in court the following morning. He thought he had been arrested in respect of a dead cow. He was arrested on 26/03/2013. He was alone in the house. It is his evidence that he was framed because there was a grudge over a cow.

The second appellant PUKIN LELAMPE gave unsworn evidence. He testified that he was arrested on 26/03/2013 at his home. Two people went to his home and requested him to go to Archers Post for a meeting. They told him to leave his small children alone. There was a grudge over their cows. A cow fell on a well and it belonged to PW1. The matter was referred to the elders for settlement. He was later charged with the offence.

The main issue for determination is whether it is the appellants who robbed the complainant of his property. The evidence shows that the incident occurred at about 10. 00 p.m. According to the complainant, he was able to identify the 1st appellant whom he knew since childhood. He identified him as he knew him since childhood. He did not know the 2nd appellant. PW3 and PW4 visited the scene. The evidence shows that they followed footsteps upto the 1st appellant’s home. They recovered a phone and Kshs.300/-. According to PW1, he had lost Kshs.7,000/-.

The first appellant’s defence explains how he was arrested. It is his evidence that there was a grudge involving a dead cow. The grudge is not explained in a manner which can make the court believe that indeed PW1 was not attacked. The evidence shows that PW1 was attacked. Medical evidence was adduced by PW6 to the effect that PW1 sustained injuries. The second appellant gave unsworn evidence. He too alleged that there was a grudge. The grudge involved a cow which fell in a well. No dates are given for that incident.

From the evidence on record, I do find that it is the appellants who robbed PW1. It is clear that PW1 gave the 1st appellant’s name to PW3 and PW4. The two appellants were arrested the following morning and were found in possession of PW1’s phone. That phone had been stolen at about 10. 00pm. The previous night. The evidence by PW1 on identification coupled with the recovery of the items places the appellants at the scene of crime. The respective defence evidence does not controvert the prosecution evidence.

I have noted from the charge sheet that the preferred charge was that of robbery. The particulars relate to robbery with violence. The charge sheet read as follows:

COUNT ONE – robbery contrary to Section 295 as read with Section 296(2) of the Penal Code.

The particulars of the offence have been stated hereinabove. The reference to Section 296(2) seems to be amended by hand. The figure(2) was changed. What can be inferred is that the initial reference was Section 296(1). It is not clear why the prosecution made reference to Section 295 of the Penal Code. The Section deals with simple robbery. Section 296(1) provides for the punishment for robbery. After amending Section 296(1) to read Section 296(2), Section 295 was left hanging. The charge of robbery with violence is normally made under Section 296(2) of the Penal Code. The charge sheet is in effect having two charges. That is simple robbery and that of robbery with violence. Although the particulars of the offence refer to a case of robbery with violence, I do find that the defects on the charge sheet meant that the appellants were facing a charge of simple robbery. Section 179 of the Criminal Procedure Code cannot cure the charge. The Section only allows an accused person to be convicted of a lesser offence and not vice versa. That is to say that the court cannot convict an accused of the offence of robbery with violence if the initial charge is simple robbery. The opposite is allowed by Section 179 of the Criminal Procedure Code. If one is charged with robbery with violence but the evidence relate to a simple robbery, the court can convict the accused of the offence of simple robbery even if the accused was not charged with simple robbery but with robbery with violence. Section 179 of the Criminal Procedure Code allows the reduction of the offence from a major one to a minor one and not the opposite. The same applies to a charge of murder. If one is charged with murder, the opposite he can be convicted of manslaughter. One charged with manslaughter cannot be convicted of murder. My view is that a charge of robbery with violence should be captured in both the charge as well as in the particulars of the offence. It should not be left on the accused to interpret for himself that if the two are combined, then the offence is robbery with violence.

I have gone through the proceedings of the trial court. The records does not show that the charge was amended. It is not clear how the subsection 296(2) was amended. I do find that the appellants are entitled to benefit from the lesser punishment of simple robbery and not undergo the punishment of robbery with violence. The trial went on as if the appellants were charged with robbery instead of robbery with violence. The appellants may not have known the effect of changing Section 296(1) to 296(20 by hand yet the typed charge made reference to Section 296(2).

I do find that the appeal on conviction lacks merit. The appellants were properly convicted. However, I do find that the appellants are guilty of the offence of simple robbery and not robbery with violence. Although violence was used, the charge was that of robbery. I do set aside the death sentence imposed by the trial court.

I had the advantage of seeing the appellants. These are young men in their youthful age. What they did was a stupid act which calls for punishment. However, they do not deserve to be condemned. I do set aside the death sentence.

The appellants should have the benefit of suffering a lesser punishment. I do hereby sentence both appellants to serve (7) years imprisonment from the date of conviction.

DATED AND SIGNED AT EMBU THIS …….….DAY OF ……………… 2017.

S. J. CHITEMBWE

JUDGE

DATED, SIGNED AND DELIVERED AT MERU THIS 9TH .DAY OF NOVEMBER 2017.

A. MABEYA

JUDGE

IN PRESENCE OF:

………………………………… for Appellant

……………………………….... for Respondent.

………………………….……….Court Assistant