[2019] KECA 146 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

(CORAM: GATEMBU, SICHALE, KANTAI JJ.A)

CRIMINAL APPEAL NO. 113 OF 2013 (R)

BETWEEN

RICHARD LENGURO RAMACHA.............................1STAPPELLANT

LONKIYA LELIKAT......................................................2NDAPPELLANT

JACOB LELEMEUWA..................................................3RDAPPELLANT

AND

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

(Appeal from the judgment of the High Court of Kenya at Nakuru (Wendoh & Emukule, JJ) dated and delivered on 31stMay, 2013In

H.C.CR.A NO. 417, 420 & 421 OF 2010)

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JUDGMENT OF THE COURT

This is a second appeal emanating from the judgment of Wendoh & Emukule, JJdelivered on 31st May, 2013.

A brief background to this appeal is that Richard Lenguro Ramacha, (the 1stappellant herein), Lonkiya Lelikat, (the second appellant herein) and Jacob Lelemeuwa(the 3rd appellant herein) as well as Fred Lontis and Loiramiram Lolmodon were chargedwith two (2) counts of robbery with violence contrary to Section 296 (2) of the PenalCode in count I & II. The particulars of count I were that on 26th March, 2009, at Kisimaarea along Kisima - Suguta Marmar Road in Samburu Central District of the then RiftValley Province, the appellants together with others not before court and while armedwith a G3 Rifle S/No. 77097794, AK 47 S/No. BA 0560- A7832 and Ceska Pistol S/No.A116789 robbed Gladys Njeri Kinyanjui of her mobile phone make 6280, one pair ofsafari-boots, one t-shirt, 3 pairs of socks, three packets of Mango juice, Kshs 400/= andsnacks all valued at Kshs 25,000. In count II, it was alleged that at the same time andat the same place, they robbed Moses Nduyu Mwangi of his mobile phones makeSamsung M620, (2) Samsung x550, (3) Nokia 1112, (4) Nokia 2760, (5) Nokia 6085 andSamsung x 550 charger and cash Kshs 100 and at the time of the robbery threatened touse personal violence to the said Moses Nduyu Mwangi. Then there was an alternativecharge of handling stolen goods contrary to Section 322 of the Penal Code, theparticulars being that on 26th March, 2009, at Lolmolok village, Suguta location inSamburu Central District of then Rift Valley Province, otherwise than in the course ofstealing, jointly and dishonestly retained four Nokia mobile phones, 2 Samsung mobilephones, 1 Samsung charger, a pair of Safari Boots and a suit knowingly or havingreasons to believe them to be stolen goods. In Count III, they were charged with beingin possession of firearm without a firearm certificate contrary to section 89(1) of thePenal Code, the particulars being that on 26th March, 2009, at Lolmolok Sub-location,Samburu Central District of the then Rift Valley Province, the appellants were foundin possession of firearms make G3 Rifle S/No. 77097794, AK 47 S/No. BA 0560-A7832and Ceska Pistol S/No. A116789 without a firearm certificate. In count IV, theappellants were charged with being in possession of ammunition contrary to Section89(1) of the Penal Code, the particulars being that on the same day (26th March, 2009)at the same place (Lolmolok Sub-Location in Samburu Central District of the then RiftValley Province), the appellants were found in possession of 17 rounds of 7. 62 mmammunitions, 4 rounds of 7. 62 mm special ammunition and 14 rounds of 9 mmammunitions.

The appellants denied all the charges and a trial ensued.

In a judgment delivered on 8th December, 2010, the three appellants were foundguilty in respect of counts III & IV and were each sentenced to ten (10) yearsimprisonment. They were also found guilty of the alternative charge and each wassentenced to seven (7) years imprisonment. The sentences were to run concurrently.

The appellants filed independent appeals to the High Court which were laterconsolidated (H.C.CR.A No. 417, 420, 421 of 2010). The State filed a cross-petition ofappeal complaining of the acquittal of the appellants from the charges of robbery withviolence and that the trial court had failed to apply the doctrine of recent possessionwhich proved the charges of robbery with violence. In the end, the High Courtdismissed the appellants’ appeal but found merit in the State’s cross-petition of appeal.

After quashing the conviction of the alternative charge of handling stolen property andsetting aside the resulting sentence, the appellants were each convicted for the offenceof robbery with violence and sentenced to thirty-five (35) years imprisonment.

Aggrieved, the appellants have lodged this second appeal, (Criminal Appeal 113of 2013)and raised several grounds as contained in their supplementary grounds ofappeal.

On 18th March, 2019, the appeal came before us for plenary hearing. Learned counsel, Mr. Bichanga for the appellants reduced the 10 grounds in the Memorandumof Appeal into three main grounds. Firstly, counsel submitted that the High Courtshould have remitted the matter to the trial court for retrial instead of reversing theconvictions in counts III & IV and in the alternative charge and substituting themwith a conviction for the offence of robbery with violence by relying on the doctrineof recent possession. The High Court was faulted for enhancing the sentence to 35years, especially given the contention that the 2nd and 3rd appellants were never servedwith the cross-petition of appeal. It was also submitted that the cross-petition of appealchallenging the decision of the trial court to acquit the appellants of the offence ofrobbery with violence was time-barred as per Section 349 of the Criminal ProcedureCode.

Secondly, counsel submitted that the High Court failed to re-analyse theevidence and proceeded to highlight from the record instances of inconsistencies in theevidence of Leusa Londungokiok (P.W.3) as to whether the appellants were known tohim or not or at what point the 2nd and 3rd appellants were arrested.

Lastly, on identification, counsel submitted that the offence of robbery withviolence could not be proved without proper identification of the appellants. Further,as against the 2nd appellant, counsel pointed out that he was arrested long after the 1stand 3rd appellants had been arrested and since none of the complainants could identifyhim, his conviction is unsafe.

The appeal was opposed by Mr. Baraka, the learned State Counsel who stated thatthe High Court in reversing the acquittal and enhancing the sentence meted was actingas empowered by Section 354 of the Criminal Procedure Code. Counsel pointed out thatas evidenced by the record, not only did the State seek leave to file the cross-petitionof appeal but it applied, in the presence of the appellants’ counsel, namely Mr.Kipkenei,who objected to have the cross-petition of appeal apply to all the appellants.

On the same day of the application (26th July, 2012), the court eventually allowed therespondent’s cross-appeal. Counsel therefore refuted the appellants’ contention thatthey did not have notice of the cross-petition of appeal.

The undisputed facts of this matter are that on 26th March 2009, Moses Mwangi(P.W.1) and Gladys Njeri Kinyanjui (P.W.2) had hired motor vehicle registrationnumber KAW 663R to take them to Maralal from Nairobi. At a place called Kisima,they were ambushed by robbers who stole all their valuables and escaped into the night.

They were unable to identify their assailants.

The then DCIO of Samburu, William Kiptum (P.W.4) arrived at the scene toinvestigate the robbery. He was given two names by other police officers of personssuspected to have been involved in the robberies. One of the suspects was Fred Lontis,a nephew to Lousa Londungokiok (P.W.3), a councillor of Suguta Marmar Ward. Theother was Richard Lenguro Ramacha (the 1st appellant). According to P.W.3, he hadnot seen Fred Lontis in two months but agreed to lead the DCIO and his officers to thehome of the 1st appellant, Richard Lenguro Ramacha. According to P.W.4, when theygot there they found the appellants in the homestead of the 1st appellant who uponseeing the police fled from the Manyatta. A chase ensued and the 1st appellant wasapprehended. As regards the 3rd appellant, it was said that he was found hiding in the1st appellant’s house whilst the 2nd appellant managed to evade capture but was arrestedat a later date. The victims of the robberies were able to identify their stolen itemsrecovered in the house. Firearms, that is, an AK-47 rifle and a G3 rifle were alsorecovered in the house. There was also a recovered stolen mobile phone from P.W.1which it was alleged the appellants had used to take photographs of themselves posingwith the recovered weapons. It soon after emerged that the G3 rifle was a governmentfirearm issued to P.W.3. P.w.3’s explanation was that he had given it to his nephewFred Lontis.

Ultimately, the three appellants together withLolmodonwere charged with multiple counts ofFred Lontisand oneLoiramiram robbery with violence, illegalpossession of firearms and in the alternative handling stolen goods. Fred Lontis waseventually discharged under Section 87(a) of the Criminal Procedure Code andLoiramiramwas reported to have died in an attempted escape from lawful custody.

According to P.W.1, Moses Mwangi, a Nokia 2760 was stolen during the night ofthe robbery. On the following day, he was called to Maralal Police Station where heidentified the Nokia 2760. It was his further evidence that he helped the police printthe pictures taken on his phone. There were pictures of several men, (some hooded),including pictures of the three appellants.

P.W.2 Gladys Njeri Kinyanjui, another victim of the robbery told the trial courtthat on 27th March, 2009, at Maralal Police Station, she too identified her Nokia 6280,a suit and Safari boots.

P.W. 3, Leusa Londungokiok, a councillor of Sugata Marmar Ward was also apolice reservist and had been issued with a G.3 rifle which he gave to his nephew,Lontiswho although had been charged with the appellants, was discharged on21stDecember, 2009under the provisions of Section 87 (a) of the CPC. On26thMarch, 2009,P.W.3 was in company of a search team and when they got to a Manyatta, the 1stappellant on seeing them fled. The 1st appellant was chased, arrested and taken to hishouse where the police recovered an AK 47 rifle, G.3 rifle that P.W.3 had given Lontisand a pistol. In his examination in chief, P.W.3 told the trial Court that he knew the2nd and 3rd appellants. However, upon cross-examination by the 2nd appellant, he deniedknowing him. Further, when he was cross-examined by the 3rd appellant, he stated “Idid not see you at 1staccused person’s house”. He however, admitted having had a casewith the 1st appellant before.

Acting on a tip off, P.W. 4, Ag. SP William Kiptumtogether with P.W.6,CIPSamuel Chacha Okongovisited a Manyatta, a day after the robbery whereupon theyarrested the 1st appellant and the 3rd appellant. According to P.W.4, the 3rd appellantwas wearing safari boots. They also recovered several phones and firearms from the 1stappellant’s house. It was P.W.4’s evidence that the 2nd appellant fled away and that inone of the phones, they found pictures of the 3 appellants. The 3rd appellant cross-examined him at length as regards who took the photographs allegedly found in one ofthe stolen phones.

P.W. 5 IL, a 12 year boy told the trial court that in March,2009, the 2nd appellant went to the house of Lontis and took a gun from therein.

In their defences, all the 3 appellants gave unsworn statements of defence. The1st appellant denied being found in possession of the alleged items, that on 5th April,2009, he was removed from the station, taken to a place where they were made to holdguns and pictures taken of them. He spoke of a long standing grudge between him andP.W.3. The 2nd appellant was arrested on 2nd April, 2009. He stated that he was alsotaken to a forest and pictures taken of them. The 3rd appellant equally denied thecommission of the offence.

The appeal before us is a second appeal. Our mandate as a second appellate Courtas regards a second appeal is as set out in Section 361 (1) (a) of the Criminal ProcedureCodewhich provision enjoins us to consider only matters of law. It provides:

“ 361 (I) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section-

(a) on a matter of fact, and severity of sentence is a matter of fact; or

(b) against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section7 to pass that sentence.”

In Kados vs. Republic Nyeri Cr. Appeal No. 149 of 2006 (UR) this Court delivereditself thus on this issue:

“…This being a second appeal we are reminded of our primary role as a second appellate court, namely to steer clear of all issues of facts and only concern ourselves with issues of law …”

In David Njoroge Macharia vs. Republic [2011] eKLR it was stated that underSection 361 of the Criminal Procedure Code:

“Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings. (see alsoChemagong vs.Republic [1984] KLR 213).”

It is important to note that the alleged recovered items were found in the housebelonging to the 1st appellant. The 2nd appellant was not arrested from this house as itwas said that he fled on seeing the police. None of the witnesses testified of his arrest.

As regards the 3rd appellant, if indeed the house belonged to the 1st appellant, and that the 3rd appellant was found there a day after the robbery, can it be said that he was inpossession of the items stolen during the robbery? Further, although it was alleged thatP.W.3 was wearing safari boots, P.W.2, the alleged owner of the safari boots did notgive any specific identifying marks. Safari boots are common shoes in Kenya and it ispossible for the 3rd appellant to have owned a pair of safari boots. It is also crucial topoint out that P.W.3 categorically stated that he did not see the 3rd appellant in the 1stappellant’s house on 26th March, 2009. It is our view that given the clear evidence ofP.W.3 that the 3rd appellant was not found in the 1st appellant’s house on 26th March,2009,his conviction was unsafe. As regards the 2nd appellant and as earlier stated, it isnot known when and where he was arrested from. P.W.3 did not say that he saw himin the house of the 1st appellant on the 26th March, 2009, yet he was one of the membersof the search team. It is in view of this that we find that the 2nd appellant’s convictionwas also unsafe.

On the other hand, the items stolen on the night of the robbery were found in the house of the 1st appellant. He offered no reasonable explanation as to how thoseitems came to be in his house. The robbery took place in the early hours of the morningof 26th March, 2009. Barely a few hours later, these items were found in the house ofthe 1st appellant. At the time of the robbery, the 1st appellant was armed with firearms,the subject of counts II & III. The ingredients of the offence of robbery with violencewere established and we cannot fault the 1st appellate court in coming to thatconclusion.

As regards the enhancement of sentence, it is not disputed that the State filed a cross-appeal dated 5th August, 2011. On 26th July, 2012, the State applied to file the cross-appeal. Mr. Kipkenei for the appellants opposed the filing of the cross-appeal. Theapplication by the State was allowed. It is in view of this fact on 27th October, 2011, Ouko, J(as he then was) directed that the appeal be heard by two Judges. We therefore find no merit in the appellant’s contention that there was no notice of the cross-appeal.

The upshot of the above is that the conviction and sentence of the 1st appellant is hereby affirmed and his appeal is dismissed. The conviction and sentence of the 2nd and 3rd appellants are however quashed and set aside. The 2nd and 3rd appellants are to be forthwith set free unless otherwise lawfully held.

It is so ordered.

Dated and Delivered at Nakuru this 21st day of November, 2019.

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR