[2015] KEHC 2200 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRA NO. 75 OF 2014

ROBERT OBARA LANG'O..................1ST APPELLANT

DAN OTIENO OTIENO........................2ND APPELLANT

VERSUS

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

[An appeal against both conviction and sentence of death imposed in Criminal Case No. 327/2013 by PM's Court at Ukwala before Hon. R. M. Oanda dated 5th August 2014]

JUDGMENT

The 2 appellants were charged with Robbery with Violence Contrary to Section 296(2) of the Penal Code the particulars being that on 4th August 2013 at Luanda Konyango Market in Ugenya District within Siaya County, jointly with another not before Court, being armed with a pistol they robbed Fredrick Ochieng Oduor of Kshs.40,000/=.

They both pleaded not guilty to the charge but after hearing the evidence of nine prosecution witnesses and the appellants the trial Magistrate found that the prosecution had proved its case beyond reasonable doubt and convicted them and sentenced them to death. Being aggrieved they filed this appeal. At the hearing of this appeal 1st appellant was represented by Mr. Omae Advocate while the 2nd appellant was unrepresented. Each appellant filed a separate petition of appeal but the appeals were consolidated and heard together.

Briefly the prosecution's case was that on 4th August 2013 at about 4pm the Complainant (PW1) had just served a customer at a hardware shop where he was working when three people entered a shop. One of them who he identified as the 1st appellant pointed a pistol at him and even shot him on the forehead while the other two one of who he identified as the 2nd appellant went to the till and took 40,000/=. The three of them then escaped. Moses Odhiambo (PW8) was painting a building behind the shop when he heard the Complainant's screams as well as a blast. He rushed to the shop only to find three young men running away. When he saw the Complainant lying in a pool of blood he ran after the three young men but one shot in the air and he (PW8) retreated. He took the Complainant to Uzima Hospital but then called the owner of the building who took him to St. Mary's Hospital. According to him he identified one of the three men as the 1st accused as they were neighbours and it was in broad daylight.

Later at around 7 – 8pm that day Vincent Ouma (PW3) was riding home on a motor cycle belonging to his brother when he was stopped by two men who asked to use his phone. After taking the motor cycle home he went back to the trading centre where he again met the two men. This time they requested him to take them to Kisumu. He became suspicious and reported the matter to Corporal Hillary Opemi (PW5) who together with one APC Richard Kones accompanied him to the scene. On seeing them the two men started running but they gave chase and arrested one of them – now the 2nd appellant. Two days later on 6th August 2013 Roselyda Awino Akello (PW4) the Assistant Chief for Indangalasia Sub-location received a telephone call to the effect that some children had found a pistol and thought it was a toy. She went to the place it had been recovered and picked it and took it to the police. According to Corporal Hillary Opemi (PW5) the pistol was alleged to have been recovered at the place the other man had escaped through. When Charles Koilege, whose report was produced by a colleague Superitendent of Police Lawrence Ndiwa(PW7), examined the pistol he came to the conclusion that it was a firearm as defined under the Firearms Act. As for the spent cartridge collected from the scene by Corporal Josephat Kiplagat of Ukwala police station (PW9) he concluded that the same had been fired from that pistol.

The 1st accused was arrested on 8th August 2013 in Nairobi just upon his arrival. He had according to Corporal Samson Nyadondi, been tracked through technology following instructions from Inspector Cephas Mutuku the D.C.I.O. Ugenya. The two of them were then jointly charged with this offence.

The 1st appellant made an unsworn statement. He narrated how on 7th August 2013 he was arrested at a bus stage where he had gone to board a motor vehicle to go to Ruaraka. He was taken to Ruaraka police station where he spent three days after which he was taken to Ukwala police station. He was threafter charged with this offence which he knew nothing about.

The 2nd appellant testified on oath that on 4th August 2013 he went to his aunty's funeral from 2pm to 7. 30pm. On his way home two men stopped him. He tried to run but he was arrested. The next day he was charged. He too denied any knowledge of this robbery.

This Court heard submissions from Mr. Omae Advocate for the 1st appellant and Miss Muriu for the state. The 2nd appellant filed written submissions on which he fully relied.

As the first appellate Court not only have we considered the rival submissions but we have also reconsidered and evaluated the evidence so as to come to our own conclusion. We agree with the appellants that this case was not proved beyond reasonable doubt. Although attack occurred at 4pm hence in broad daylight it is doubtful that the Complainant identified any of his attackers. He was candid that he did not know the 1st appellant, who is the only one he alleges to have identified prior to that day. His evidence does not disclose how he identified him and it is apparent that the question as to what made him certain that the person he saw on that day was the same person he was seeing in Court was never put to him. His evidence that he told the police that the 1st appellant was in black appearance was not confirmed by way of the officers who testified. The Court was also not told how long he had the attackers under his observation before he was shot and lost consciousness. It is not clear therefore whether there was sufficient opportuntiy for a positive identification.

It is also noteworthy that no identification parade was conducted hence rendering this dock identification worthless.

As for Moses Odhiambo (PW8) who alleges to have recognized the 1st appellant as one of the attackers, he started his testimony by saying that when he arrived at the scene he met three young men running away. It was when he saw the Complainant lying in a pool of blood that he ran after them but when one of them shot in the air he retreated. The question then is at what point did he see the 1st appellant. What part of his body did he see? What was he wearing? Granted that he knew him well he could have made a mistake. He ought to have prodded further to confirm what it was that made him recognize one of those men as the 1st appellant. Moreover, it is unbelievable that he could have recognized one of the attackers positively and failed to immediately notify the police of this. If he did this is not borne by the evidence.

There was also no attempt to connect the 1st appellant to the firearm that was recovered two days after the incident and which was positively identified as the weapon used during the robbery. Why for instance was it not dusted for finger prints? That would have gone a long way to placing the 1st appellant at the scene of the crime.

As for the 2nd appellant it is apparent that he was arrested because the motor

cycle rider found him suspicious. That was the evidence of the arresting officer (PW5). This rider (PW3) does not even explain why he found the 2nd appellant and his mate suspicious. There was also completely no evidence to place him at the scene of crime as no witness claims to have identified him during the robbery. As for the gun it was the evidence of the arresting officer that ''After 6th, I found out that where he escaped through, a pistol was recovered.'' He does not say who he found out this from and clearly that is hearsay. There is no evidence that the arresting officer took the investigating officer (PW9) to the place he arrested this appellant to show him the route he had escaped through. The allegation by the investigating officer that the gun was recovered on the path through which he escaped is also just hearsay. The 2nd appellant did also raise an alibi which though not discharged by the prosecution the trial Magistrate still disbelieved. It would appear that the Learned Trial Magistrate required him to prove the alibi which is contrary to the law. In our view the prosecution did not even establish a prima facie case against this appellant.

The upshot is that we find the appeal merited. The same is allowed. The conviction is quashed, the sentences imposed on the appellants set aside and they ought to be released forthwith unless otherwise lawfully held.

Signed, dated and delivered at Kisumu this 30th day of September 2015

H. K. CHEMITEI E. N. MAINA

JUDGE JUDGE In presence of:-

for the state

for the appellants

CC: Moses Okumu