[2017] KEHC 3017 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 142 OF 2013

REUBEN KIOKO.…………………………….APPELLANT

VERSUS

REPUBLIC…………………………………RESPONDENT

(Being an Appeal from the conviction and sentence of Hon. M.W. Murage (CM) in Machakos CMCCR. No. 1407 of 2012 delivered on 27th June, 2013)

JUDGEMENT

1. The Appellant, Reuben Kioko was on 24th September, 2012 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 18th September, 2012 at Kaitha sub-location in Mwala District within Eastern Province, being armed with dangerous weapon namely a ‘panga’ robbed Onesmus Munywoki Mweu of KShs. 1800/= and immediately before or immediately after the time of such robbery wounded the said Onesmus Munywoki Mweu.

2. The Appellant pleaded not guilty to the charge and was put to trial. The Complainant, Onesmus Munywoki (PW1) testified as follows. He sells goats for a living. On the material day at around 7:00 pm, he was from the market when on reaching the house, he saw someone who he recognized as the Appellant. The Appellant approached him and told him to sit down. The Appellant held PW1 by his right shoulder, placed a panga between his legs then took his Kshs. 1,800/=. He stated that the appellant cut his head through the cap PW1 had on. He then hit him on the shoulder with the panga. He screamed and people heeded to his screams. That when the appellant saw people coming to the scene, he jumped through the fence and disappeared into the forest. PW1 stated that the appellant had a white cap on. He reported the matter to Wamunyu Police Station where he was issued with a p3 form and with the form he went to Machakos Hospital for treatment.

3. On cross examination, PW1 stated that he saw the appellant since there was sufficient light. That he recognized him since he had ever seen him before the incident. He stated that he and the appellant were facing each other and he looked at the appellant as he told him to sit down. He stated that the appellant was arrested three (3) days after the incident. That after the arrest of the appellant, he was taken to PW1’s home where he identified him. He stated that he and the appellant had once shared a meal and that he had once bought three (3) goats from the appellant’s employer and were together on the said day. That he reported the matter to the police on the night of the incident.

4. Josephine Ndunge Mutuku (PW2) who is PW1’s daughter in law testified that on the material day at around 7:00 pm she heard PW1 scream. When she proceeded to where he was, she found him bleeding from the head. She tied his head and they proceeded to Wamunyu Health Center. There, PW1 was given first aid treatment. He was later taken to Machakos Hospital for treatment. She stated that PW1 indicated that his attacker was a person known to him.

5. Boniface Nzau Mutuku (PW3) who is PW1’s son stated that he received a call on the material day at around 7:00 pm. He was informed that PW1 had been robbed and injured on the right side of the head. He was taken to Wamunyu Health Center and then to the police station to lodge a report. He stated that PW1 told him that he knew his attacker as an employee of Francis Ndunga Muhindi who sells goats. That he and the sub chief went to Ndunga’s home and the appellant was arrested and taken to PW1’s home where PW1 identified him as the robber.

6. Jackson Mutiso (PW4) who is the assistant chief of Kaithya Sub-location testified as follows. He received a report from PW3 who is a village elder on 20th September, 2012 that PW1 had been violently robbed of Kshs. 1,800/=. That PW1 said that he would identify the robber if he saw him since he was someone he had once before seen when he had gone to buy goats. On 21st September, 2012, he went to the appellant’s workplace and arrested him. He was taken to PW1’s home and was identified by PW1.

7. Police Constable Mathia (PW5) from Masii Police Station testified that he on the material day received a report from the complainant that he had been violently robbed. He visited the scene where he recovered clothes and a cap. PW1 identified the cap as that worn by the appellant during the incident. PW1 was taken to Machakos hospital for treatment. On 21st September, 2012, the appellant was arrested by the area assistant chief and members of the public. He produced the clothes as P. Exhibit 1, 2, 4 and 5.

8. Ms. Alice Manee (PW6) a clinical officer from Wamunyu Health Center confirmed that PW1 was treated at the facility with a deep cut of the right side of the head and bruises on the head. She stated that the age of the injury was 3 hours. She also stated that PW1 had on a blood-stained pullover and coat and that the cap he had on had a cut. She produced a p3 form (P. Exhibit 3) to that effect.

9. The appellant was put on his defence. He testified that he on the material day worked until 6:00 pm. He went home until 9:00 pm where he had dinner and retired to bed. He stated that he was with one Peter Ndunda and Ben Ndunda in the same house but different rooms. On 21st September, 2012 he was interrogated and informed that he had violently robbed PW1. He was arrested and charged.

10. The trial court found the appellant and convicted him on the basis that he was positively identified and he failed to challenge PW1’s evidence. He was further sentenced to suffer death.

11. Aggrieved by the conviction and sentence, the appellant filed this appeal on grounds that can be summarized as follows:

a) That he was convicted on a duplex charge that was defective.

b) That he was not positively identified.

c) That the evidence as to the mode of his arrest was riddled with doubt and not enough to sustain a conviction.

d) That the investigations were shoddy.

e) That the prosecution case was not proved beyond reasonable doubt.

f) That the evidence was evaluated and analyzed in a speculative manner.

g) That the appellant’s defence of alibi was not considered.

12. This being a first appeal, I am duty bound to re-evaluate the evidence tendered in the trial court, and come to an independent conclusion as to whether or not to uphold the conviction and sentence. In so doing, this court bears in mind the fact that it did not have the benefit of seeing or hearing the witnesses as they testified. See: Okeno v. Republic [1972] EA 32.

13. On the first ground the appellant submitted that the charge was defective having included both section 295 and 296 (2) of the Penal Code and that a conviction could not be based on it. To support his argument, the appellant cited a myriad of cases among them; Mary Kamuiru and others v. Republic (2016) eKLR and Maurice Oduor Oduol and another v. Republic (2017) eKLR in which the court founda charge sheet with duplex charge to be defective.

14. On the second issue of identification, the appellant argued that PW1 being the only identifying witness, evidence must be watertight to justify a conviction. He lamented that while PW1 stated that he was attacked at 7:00 pm, he on cross examination changed his statement that he could not tell exactly what time it was. That the first people PW1 is said to have met after the accident were PW2 and PW3 but he did not tell PW2 the attacker’s identity. That it is not clear why it took PW1 3 days to tell PW3 the identity of his attacker. He argued that in view of the same, it could not be said with certainty that the appellant was positively recognized. It was further argued that the identification was not subjected to the tests recommended in law and as was instructed in Cleopas Otieno Wamunga v. Republic CA No. 20 of 1989 and Turnbill v. Republic (1976) 3 WLR 445 among others. That while PW1 stated that he had seen the appellant before, he did not indicate whether or not they had ever talked or had any personal contact thereby eliminate chances of mistaken identity. He argued that despite the said the possibility of mistaken identity the same did not see the light of day before the trial court. The appellant contended that PW1 did not tell PW3 immediately that he recognized the appellant. On this aspect, the appellant cited John Bosco Ziro Kalume v. Republic Criminal Appeal No. 41 of 1998. Where the court held that failure to mention that the complainant recognized his assailant weakened his evidence of recognition. It was further argued that the evidence of PW5 was inconsistent when on cross examination he stated “you were wearing the cap during the robbery. when you were arrested you were wearing it.” That while PW5 so stated on cross examination, he said otherwise during examination in chief that the cap was recovered at the scene when he visited.

15. On the issue of alibi defence, the appellant argued that having denied the charge and tendered evidence that he was elsewhere other than at the scene, the burden was on the prosecution to prove his guilt. He cited Sekitoleko v. Republic [1976] EA 531, Uganda v. Sebyala [1969] EA 204 and Elizabeth Waithiegeni Gatimu v. Republic C.A. No. 50 of 2012 among others in support thereof.

16. In response thereto, the respondent conceded that the charge was defective and urged for a retrial.

17. It was held in Mwaura v. Republic (2013) e KLR that the correct section of the law to charge the offence of robbery with violence is section 296 (2) of the Penal Code. To charge one under both section 295 and 296(2) of the Penal Code is wrong. It follows therefore that the appellant herein was convicted on a duplex charge. The effect of such a duplex charge was expounded in the Court of Appeal decision in Makupe v. Republic Criminal Appeal No. 98 of 1983 and Fatehali Manji v. Republic [1966] EA 343 where it held that a retrial will in general be ordered when the original trial was illegal or defective and it will not be ordered where the conviction is set aside because of insufficient evidence.

18. After analyzing the record I come to a conclusion that this is an appropriate case for retrial. It is noted that the Appellant has barely served sentence and therefore an acquittal will not be in the interest of justice. I find a retrial is appropriate in the circumstances. Consequently the conviction and sentence by the trial court is hereby set aside. The Appellant is ordered to be produced before the Chief Magistrate Machakos Law courts on the 24th October, 2017 for retrial.

It is so ordered.

Dated, signed and delivered at MACHAKOS this 10thday of October, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Reuben Kioko the Applicant

Machogu for the Respondent

Kituva - C/A